Monday, July 22, 2013

Midlands Voices: Stop Obamacare in its tracks
By Ben Sasse

The author has served as chief of staff for the U.S. Justice Department’s Office of Legal Policy and as assistant U.S. secretary of Health and Human Services under President George W. Bush. Currently president of Midland University, he has been exploring a U.S. Senate candidacy.

Obamacare is a ticking time bomb for Democrats in the 2014 elections. Nobody knows this better than President Barack Obama, which is why over the Fourth of July holiday weekend he unilaterally decided to delay its controversial employer mandate provision until after the midterm elections.

No wonder: The $2,000 per-worker fine is disastrously unpopular. Already, employers are laying off workers and dramatically cutting others’ hours in an effort to skirt the new penalty. The fact that this perfectly predictable development surprises many in Washington only underscores that they didn’t really read this 2,300-page monstrosity before they passed it.

Desperate for any appearance of victory, Republican leaders have decided to match the president’s delay with one of their own: proposing legislation to delay for a year the mandate for individuals. Perhaps useful, perhaps not. Well-meaning people can differ about legislative strategy.

But if Republicans don’t have a larger plan to actually oppose this unprecedented power grab in a way the American people will understand, then they will have given up the ghost on actually turning back the slew of new job-killing bureaucracies.

Congress should completely defund Obamacare by October, when the government next runs out of money. To paraphrase Ecclesiastes, there are times for half-measures, and there are times to get the job done. If Republican leaders intend to vote only on an individual mandate delay, then this half-measure will serve only to keep Obamacare limping along now to wreak its havoc and ruin on the economy later.

Republican leaders are understandably wary of being blamed for a government shutdown at the next showdown about running out of money (yet again).

But Congress must not do anything to prop up this faltering law. For the moment the Obama administration declared the employer mandate would be delayed until after a tough election, this debate transcended a fight over health care and became a fight about transforming our constitutional system of separate but equal branches of government.

This is now about ceding power to a runaway executive branch that the Constitution simply does not allow.

Just because that law bears Obama’s fingerprints and in slang bears his name does not mean that he has the imperial power to curtail it, any more than he could expand it. If he could, what would stop him from simply expanding it to outlaw, say, large Slurpies? Or unilaterally expanding it to mandate that all Americans cough up membership fees for gyms?

By enforcing only the provisions he finds politically expedient or tolerable, the president decided he could make the law what he desires it to be rather than what the words on the page actually say. He essentially granted himself the line item veto.

From the plain reading of the Constitution that the president’s fundamental duty is to “take Care that the laws be faithfully executed” (Article II, Section 3); to the U.S. Supreme Court’s unequivocal judgment in Kendall v. United States (1838) that the president may not claim a power to “control the legislation of Congress”; to the court’s resounding rejection of a mere statutory line-item veto in Clinton v. City of New York (1998) — there is no uncertainty about the president’s duty to either enforce a law entirely or to ask the duly authorized Congress to amend it. He does not have the power of amendment himself.

The Constitution nowhere empowers the president to ask that Congress pass unknowably large laws and then to muck around inside them until he finds portions to choose to implement and enforce.
Sadly, few Democrats in Congress are standing up to express outrage at such a blatant attempt by a president to usurp the powers of the other two branches of government. And it’s downright terrifying that many Republican leaders in Congress appear willing to softly baptize this extraordinary power grab by settling merely for a fig leaf of quid pro quo modification of a different portion of this unpopular law.

If they are serious about their duty to uphold the Constitution, they will stick with defunding the law that the president has just refused to implement in a lawful manner.

The time to fully stop Obamacare is now, for it is suddenly about so much more than health care.

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