Where’s the bright line between executive overreach and executive discretion? That’s the question is think that former judge and law prof Michael McConnell is addressing in an op-ed in the Wall Street Journal:
President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”
As Mr. McConnell notes, stretching the limits of discretion has become a bad habit for the Obama Administration:
This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.
The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.
I think there are basic differences about the function and purpose of law at the root of this. I think that at the very least a good faith attempt should be made at the rigorous enforcement of every law without exception. Exceptions are for the courts to decide, not the executive.
However, I recognize that others believe that laws are more of a statement of intent rather than something to be rigorously enforced. In this view it’s the idea of the PPACA or the ARRA that matters rather their precise implementation.
I couldn’t disagree more. I think that discretion is just another word for abuse.
Well, you are in reasonably good company, IMO.
Kydland, F., and E. C. Prescott (1977). “Rules Rather than Discretion: The Inconsistency of Optimal Plans”. Journal of Political Economy: 473–492.
As it turns out, there’s an online version of that article here.
The authors take a somewhat different tack than I am. Their position, if I’m reading them correctly, is that regulatory arbitrage is always possible and will overwhelm even the best-intentioned and best-managed system. That’s a good point, it’s good to know, and, obviously, I agree with them.
However, my point is that no system will ever be permanently well-intentioned and well-managed. It’s not just that people will catch on to what you’re doing and take advantage of it. It’s that human beings are what they are and come complete with preferences, foibles, agendas, etc.
You are wrong here. The exec branch needs the discretion on when to initiate a law if there are problems initiating it. Delaying the ACA by a year to try to give it time after all of the unforeseen delays is just common sense. I dont think anyone saw the split decision on the ACA coming from SCOTUS. I will concede that they should have seen the resistance and sabotage coming from the GOP on the exchanges and funding issues.
On the immigrants, Obama deported a record number of illegal aliens. If he chooses to concentrate on criminals rather than 8 y/o’s, I think most of us would call that good govt most of the time. I guess if Obama does it we call it govt overreach, or something.
(I really dont get the whole gist of your argument here. You regularly argue against bad government. When they make decisions that actually make sense, that will help avoid chaos or increased costs in implementation by acknowledging a program isnt ready and delaying it, or realizing that if you have limited resources you should prioritize how you use them, you then push for rigidity in governance. I can certainly tell you that is not how we do things.)
Steve
I agree that Obama has substantially enforced immigration (at least more so than Bush), properly targeted the worst class of illegals based upon the limmitted resources Congress has authorized. I think whomever is threatening Congress with future non-enforcement if he is not given immigration reform don’t realize that they are creating a backlash.
In any event, the real immigration issue is that in the guise of traditional discretion not to prosecute every offender when resources are not available, Obama ordered that the intended beneficiaries of the Dream Act be immune from deportation and eligible for work permits. He did this because the law did not pass.
I’ve not seen a formal explanation from the Administration, but my position would be analogous to this:
A few years ago, MN had an impasse on the budget, resulting in closure of the agency charged with processing licenses to sell alcohol. This meant that licensed drinking establishments were unable to renew their licenses, even if they had mailed the renewal form and check prior to the deadline. IMHO, enforcing the licensing requirement when compliance was made impossible by the government’s own acts or omissions would have been Unconstitutional and it would have been proper for the executive to announce temporary non-enforcement of the licensing requirement.
Is that where we are with Obamacare? Will the government have the program ready in time for businesses to comply with the mandate as written by the legislature?
Let me see if I can explain, steve. My idea of good government isn’t finding the smartest and most virtuous people and then giving them broad discretionary powers to implement their visions. We’re fresh out of philosopher-kings. The blokes we’ve got instead are no smarter or more virtuous than I am.
What gives them the right to exercise broad discretionary powers? That they convinced 50% of the people + 1 that they’re less dangerous to the republic than the other guys? That’s absurd on the face of it. That doesn’t demonstrate that they are able to wield broad discretionary powers wisely and justly. It just demonstrates that they’ve been able to convince 50% of the people +1 that they’re less dangerous to the republic than the other guys.
And besides, as the article linked above demonstrates, even if they were philosopher-kings they wouldn’t be able to implement their plans anyway.
I would prefer a government that would function reasonably well even if implemented by dumb, bad people as long as they followed the rules. It’s what we will get anyway, so that’s what we should design for. I think that also implies that you limit the functions of government somewhat more than we do now and direct energies in other directions but that’s another subject.
In one sentence: more umpires, fewer planners.
Dave- I am not asking for philosopher kings, I just want some minimal competency. You are advocating for stupidity. In the case of the ACA, the GOP has been actively trying to sabotage it, but well beyond that, it took until 2012 for SCOTUS to make its decision. States, probably correctly, decided not to sink a lot of money into complying with the ACA in case the SCOTUS overturned it. That means it just i snot ready to start. You want it to go ahead anyway. Why? As a private practice doc I can tell you we dont do stuff like that if things are not ready. You delay things if needed.
What gives them the right? First, you really think that delaying things a bit is broad discretionary power? Wow! That strikes me as over the top. Next, what is the point of having an exec branch if you arent going to have someone shepherd things into existence? Congress passes a law and sets a date 4 or 5 years in the future. Someone needs to monitor progress and make sure it works. If there is no ability to exercise some discretion, no program will succeed. None. That is true for near any project.
Now, maybe I am wrong and my experience is atypical. Does every plan you make for your clients work perfectly. Do you never have to delay or modify things?
Steve
Nope. I’m just acknowledging that stupidity is inevitable. If you want to recruit smart, virtuous people, we’re going about it the wrong way. You can’t do it with elections.
“However, I recognize that others believe that laws are more of a statement of intent rather than something to be rigorously enforced. In this view it’s the idea of the PPACA or the ARRA that matters rather their precise implementation.”
I robbed a bank and a 7-11 last week. When the cops caught me they said I should have just stopped after robbing the bank and it would have been OK because although laws against robbery were just “statements of intent,” last week was 7-11’s turn for rigorous enforcement.
I’m with Steve. I honestly don’t get your point.
First of all, no, we don’t elect the guy we think is less dangerous. That’s just you putting prejudicial spin on the ball. It’s like some snarky trick I’d pull, and it’s funny, but it doesn’t really make any sense. We elect the guy we think will do the best job.
As for the vote, 50% + 1 = 100% of the authority the American people have to confer on a legislator or an executive. That’s the total you need. You don’t gain extra authority from 55% or 60%. It’s binary: you are elected or you are not.
When we vote we elect a candidate to do that job, not to shrug and say, “Well, I guess I better do something stupid right now rather than stall for a year and do something smarter then.”
Finally, dude, wherefore the cynicism about American democracy? Of course things aren’t optimum. But things are wildly better today than they were when I was a kid in the Eisenhower or JFK or LBJ administrations. I wouldn’t trade this era for the 50’s, the 60’s, any other previous decade. My kids are 16 and 13 respectively. When I was that age there were riots in the streets, a political assassination every few months, a bloody, humiliating war that had already cost us many times what Afghanistan and Iraq have in human terms, we were 20 minutes away from nuclear annihilation, there were still segregated restaurants, women were chattel and gays were terrorized. Even setting aside the fact that I was poor and my kids are not, they are so, so much better off than we were.
American democracy has done pretty damned well for us, despite the fact that we are (as always) beflicted by idjits. And despite current difficulties I’m optimistic about the future.
It conveys the authority to follow the rules. Not to do whatever you think is necessary to get the job done.
Maybe it’s because I live in Chicago. There’s no democracy here—just a sort of electoral aristocracy. You can vote “Yea” or “Nay” on the hereditary autocrat but he or she will be elected all the same.
Chicago, despite its nickname of the “City That Works”, is manifestly not working any more. Based on 2010 census results its population has declined since 2000, since 1990, since 1980. You need to go all the way back to 1910 before it was this small. I’m very concerned that after years of holding its own it’s going the way of St. Louis or Detroit. I think that New York would be the same story if it weren’t for the billions in federal subsidies New York has received.
As mentioned in another post yesterday, you’ve got elected officials pleading for the National Guard because City Hall can’t or won’t end the carnage in the streets. And there’s the pension mess, caused by years of malfeasance.
Illinois is possibly the least democratic state in the Union. We don’t have the initiative, the referendum, or the power to recall elected officials. We can’t even amend the state’s constitution. We’ve had a string of governors convicted of corruption in offfice.
It’s not democracy I’m concerned about. It’s our present system which ain’t democracy.
The President’s actions are not normal. It is in no way normal for the President to unilaterally disregard a law.
President’s have ignored the law in a few instances: (1) enforcing the law would be unconstitutional (see my example); (2) the President is faced with inconsistent laws; (3) the Congress did not appropriate the resources needed to execute the law and (4) the President exercises independent Constitutional authority, primarily in the area of war powers. In any event, they’ve claimed a limiting principle other than their personal sense of the greater good. I’ve yet to hear one here.
Nixon refused to spend money appropriated by Congress because it was in the greater good and he got slapped down by Congress and the Courts. I cannot think of any other recent example of a President ignoring the law outside the exceptions I’ve listed.
Nixon used to delay executing the law when he felt it was in the greater good. In 1972, Congress passed a law to help finance sewage treatment plant improvements with an appropriation to fund it. Nixon announced that he would delay implementing it for a few years because:
“Grants for waste treatment plant construction ($9 billion). Release of all these funds would be highly inflationary, particularly in view of the rapid rise in non-Federal spending for pollution control. Some of the funds now deferred will be allotted on or prior to February 1, 1975.”
The Supreme Court unanimously ruled that Nixon did not have authority to do this since Congress did not vest the President with any discretion in the law. (Train v. City of N.Y.(1975))
“The President’s actions are not normal. It is in no way normal for the President to unilaterally disregard a law.”
I think something like the fallacy of composition is going on here. This law, the health care reform Law (I’m going to use a cap here), has many parts (component laws, if you will). What if, in the president’s judgment, not delaying implementation of one of the component laws would endanger the final implementation of the entire health reform scheme as set forth in the Law? What if, in other words, he sees his duty to see that the laws be faithfully executed to mean that he must take steps to see that the program set-up by Congress in the Law is successfully implemented, and this success, in his judgment, requires a delay in the enforcement of the one of the component laws? How then is he derelict?
Abraham Lincoln on “The Perpetuation of Our Political Institutions”
“Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others.”
. . .
“When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made.–I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.”
@sam, if President Romney had decided to unilaterally suspend the employer mandate, and perhaps suspend the individual mandate since the employer mandate was supposed to work in conjunction with it and suspend guaranteed issue since Congress intended the mandates to prevent the adverse selection problems, would this be gretted with a yawn? He would just be trying to make the laws work better and after all he received more votes than Obama.
Nixon also suspended the operation of a portion of a larger law (the Clean Water Act) to improve larger outcomes because the huge amount of pollution control facility under construction following the First Earth Day meant a lot of money would be eaten up by inflation. We would have gotten more bang for the buck, more pollution control per dollar, with a more gradual implementation. It doesn’t matter, that wasn’t his job.
Re Romney, maybe not, yawn-wise, but so what? If I were convinced that Romney’s reasons for doing so were in the interests of making the program, as created in the Law, successful, I wouldn’t join the corps of political jack-assery that opposed the decision because he’s a Republican.
As for the Nixon case, I’m sure that apposite. However that may be, consider this [Source]:
The takeway is that the situation is not clearly one of “He ain’t gonna enforce the law”. Now it’s true, as the cite says, that the language is categorical in the statute that so and so and so will happen on Jan. 1 2014, but it’s hard to see how such a penalty could be assessed absent the comprehensive reporting upon which the penalty (or not) will be determined, which reporting Treasury has delayed until 2015 (which it statutorily empowered to do) – and this is not, as the quote seems to indicate, an argument from impracticality. I understand it to be an argument from ontological necessity: A depends on the existence B, B does not exist, therefore A is not possible. The argument, then, is that the president’s delay of the 2014 penalty is being done in light of Treasury’s delay of the essential reporting requirements until 2015. See the cite for a link to the Treasury memo. I’d put it in, but the spam catcher would object.
I meant, of course:
As for the Nixon case, I’m not sure that is apposite.
@sam, I’ve already indicated there are situations where the executive may ignore a law, and I’m open to agreeing that they apply here if additional information comes forward. But the arguments for Obama in this thread strike me as simply trusting Obama in his good intentions, and I actually find that reasoning alarming, more than the practical implications of the delay. If the President is only required to see that those laws are faithfully executed that he chooses based upon his subjective good-faith beliefs, there eventually will be no law.
I think Nixon’s personal motivations were mostly that he didn’t like the law, and that his justification though not untrue, was largely pretextual.
“If the President is only required to see that those laws are faithfully executed that he chooses based upon his subjective good-faith beliefs, there eventually will be no law.”
I certainly agree with that, but, as I indicated, I don’t think that’s the case here.
Agree with Sam. While I understand there is potential for abuse, if there is a delay in order to help make a program have an effective start, that is different than delaying just because you dont like a program. PD’s Romney example is perfect. As he noted before, programs have been delayed due to lack of funds. Delaying them because the GOP refuses to fund exchanges and because it took two years to get through the SCOTUS seems pretty similar to me.
On the flip side here I dont want to reward obstruction. If you can delay bills from being implemented by running a Supreme Court challenge on every one, and refusing to fund the bills, you can sabotage bills that were passed by supermajorities of the population (their representatives).
Steve