woody zimmerman 118 2007Under the U. S. Constitution, a president has significant powers, including the powers to:

  • Sign legislation passed by Congress, thus making it law;
  • Strike down legislation passed by the Congress, via his veto;
  • Nominate federal judges;
  • Appoint cabinet officers;
  • Call for a declaration of war;
  • Sign treaties with foreign governments.

Appointments are subject to confirmation by the Senate; his veto can be overturned by a Congressional super-majority; and treaties must be ratified by the Senate to become effective.

What the president does not have is the power to change or nullify laws which the Congress has passed and he has signed. No provision in the Constitution enables such actions. Indeed, Article II, Section 3 of the Constitution specifically stipulates – and the president’s Oath of Office further affirms – that he is bound to “faithfully execute the laws of the United States.” This is not optional. The president does not reserve a power to ignore laws he dislikes; nor may he excise parts of some laws for his own convenience or for the convenience of selected parties.

One would have thought that these Constitutional powers – and their limitations – were well understood by now, but one would have been wrong. In several instances during his tenure in office, President Barack Obama has “changed” enacted laws, solely on his order. The president’s lawyers assure us that he possesses the authority to modify laws or decline to enforce them. Not a finger has been raised to contest his unilateral actions. No Supreme Court lawsuits have resulted.

The latest of Mr. Obama’s law-modifications involves changes he has ordered in the enforcement of the Affordable Care Act – a.k.a. “Obamacare.” As soon as the law’s rules and conditions took effect, commencing on October 1, 2013, it became clear that Mr. Obama’s signature promise about the law was not going to prove true. This was his repeated declaration: “If you like your health care plan, you can keep your plan. Period!”

Although Mr. Obama has twisted and turned, every which way, to escape culpability for telling the American people this whopper, that final, one-word stinger has been his undoing. Millions of listeners clearly understood that he added no qualifiers to his original promise. In fact, this single vow probably enabled passage of the legislation. Had the truth been generally known about the new law’s hidden intentions, it is doubtful that even a Democrat-controlled Congress could have passed it in 2010.

Indeed, it now appears that the critical requirements-definition phase for the Obamacare web-tool was delayed until after the 2012 elections to ensure that no inconvenient details leaked out to obstruct Mr. Obama’s cruise to re-election. This late start virtually guaranteed failure of the web-site’s October 1st startup. In response, Mr. Obama has said, “We didn’t realize on-line shopping for insurance would be so complicated…” (Of course not. How could he be expected to know?)

To date, over 5 million individual health insurance policies have been cancelled because they do not meet Obamacare’s coverage rules or other stipulations. Administrations spokesmen call these plans “substandard,” claiming that ACA-approved plans will be a “better deal” for the “mere 5%” of citizens who have lost their old coverage. Obamacare flacks also blame insurance companies for canceling plans that people wanted to keep. But even Mr. Obama’s Mainstream Media pals have given these specious claims the horselaugh. They and the public are furious about being lied to by the president and his allies in the Democratic Party.

Many Democrats – looking ahead to the 2014 election – are now heading for the tall grass to escape voters’ ire. Last week, 39 Democrats joined 222 Republicans in passing a House of Representatives bill to repeal those ACA regulations that have caused widespread cancellation of current policies. The measure would allow insurance companies to renew and sell inexpensive, limited-coverage policies that have been (or would be) canceled because they don't meet the Obamacare standards that took effect on October 1. The bill passed the House by a vote of 261-157. Mr. Obama has threatened to veto it, should it pass the Senate.

Sensing a gathering avalanche, Mr. Obama continues to denounce any legislative fixes of the ACA. Just before the vote on the House bill, he tried to head off massive Democrat defections by declaring that he would “permit” pre-Obamacare insurance policies to be sold, on condition that: (1) insurance companies agreed to re-offer them; (2) state insurance commissioners accepted this revision; and (3) the change extended “unapproved” policies only through 2014.

Political observers quickly speculated that this canny move would toss blame back to insurance companies and the states, and let the president skate free of the crisis. This is possible, of course, if the public stops paying attention. The announcement takes the media heat off, while the most inconvenient details will emerge farther down the road. The “solution” is meant only to quiet the hubbub. It may not “fix” anything about the policies, but hopefully, the media will lose interest.

Other analysts have pointed out, however, that the president lacks Constitutional authority to change law in this way – even if it bears his name. This is where we came in on his latest “law-modification.” If Mr. Obama successfully claims this power, we shall have no real need of future Congresses. The president will be able to govern entirely by executive orders.

The president’s allies argue that Mr. Obama does have authority to change the rules about which insurance plans are “acceptable” because these rules were made by the Department of Health and Human Services. They were not in the legislation’s text, as it was originally enacted. They say Mr. Obama can certainly tweak rules that were instituted by his own HHS Secretary.

But this argument raises more problems than it solves. Rules not included in the original text of a law, but inserted after its passage, can hardly be considered to have the force of law, no matter what the Congress may specify about them. The Constitution says that only Congress can make law. Nothing in that document allows Congress to delegate this power to cabinet officers, presidentially appointed “czars,” or even to the president, himself. Rules added to legislation, post-passage, are highly questionable. This is especially true for rules which contravene the law’s publicly declared intent – i.e., rules that violate the basic “spirit” of the law. Rules abnegating the promise that “you can keep your insurance” would certainly fall in that category.

This line of argument has, in fact, already been tested in the Supreme Court. The Line-item Veto Act of 1996 allowed the president to eliminate items, piecemeal, from budgets duly enacted by Congress. It was nullified by the Supreme Court in 1997 for being un-Constitutional. The Court said Congress lacked Constitutional authority to partition the president’s veto power in this way. He could veto an entire budget, but could not perform surgery on it by removing only some parts.

Nothing can be counted as certain with respect to Supreme Court rulings, but the fairly recent practice of allowing cabinet agencies to add many rules to legislation after its passage appears to be a very good candidate for judicial cancellation. You need not be a Constitutional lawyer to see that no article confers this power. Laws must be defined before they are passed – not afterward. Just because Congress says it’s OK to flesh out the law after passage doesn’t make it so.

If the House of Representatives fails to press this case in the Supreme Court, the practice of redefining a law after its passage will persist and will eventually become normalized. Indeed, we are practically there now. Even Democrats should be able to see that this is very dangerous ground. Were the Constitution respected and followed, this would be a High Crime within the meaning of Article II, Section 4. It must be stopped.