- The American Conservative - https://www.theamericanconservative.com -

What’s a Law to an Executive?

Late yesterday, the Treasury Department announced [1] that it will be delaying the employer mandate provision of the Affordable Care Act (Obamacare) by one year. Treasury’s ostensible reason is to simplify reporting requirements, but Josh Barro explains that is either lame or fake [2]. In short, the Obama Administration is having difficulty implementing its signature legislative achievement, and so is pushing it back to try and ward off some of the consequences of a bungled law.

Last week, the Supreme Court overturned a federal law (DOMA), which having declared it unconstitutional, the Department of Justice had already refused to defend in court. The Court simultaneously denied standing [3] to a California group seeking to defend ballot initiative Proposition 8, which had amended the California constitution to ban gay marriage. The California executive had refused to defend that popularly passed measure, and so the amendment was defeated by ultimate default after being struck down by a lower court.

What these have in common is an executive tradition with an ever increasing sense that it is not only the executor of the laws, but the legislator and judge as well.

In the latest issue of National Affairs [4], Tevi Troy detailed how Team Romney planned to implement their “pledge to repeal Obamacare.” Troy acknowledged that “even in the optimistic scenarios that had Romney winning the Presidency,” the GOP would lack full control of the Senate, and so “a straight-up, all-out repeal was unlikely.” As Jordan described [5] previously, their strategy was: “eat away at enough of the the thing that collapse is inevitable and repeal seems like the better option to Senate Democrats.”

Because of the great “leeway” given to the HHS in making key decisions about Obamacare, Romney’s team of experts concluded that, “in the hands of an administration eager for repeal,” it would be possible “to effectively nullify the new system through a carefully choreographed series of executive actions.” Troy says “the regulatory rollback would have been so complete that we were confident Obamacare never could have gotten off the ground,” and a better designed system could be pushed to replace it.

Such an initiative would have come under great contumely, and provoked a great outcry from Democratic circles and the media, who would have rightly called it a breach of the principle that the executive should enforce Congress’s duly passed laws. Congress has abdicated so much legislative authority to the executive branch, however, that it has enabled any arbitrary implementation and enforcement of its laws that satisfy any executive’s political concerns.

In related news, the Dodd-Frank financial system reform still has significant regulations outstanding as pressure is brought on regulators to delay and water down another complex mess of well-intentioned legislation. And before the administration began its push for immigration reform, it ramped up enforcement of border laws [6] so as to mollify conservative critics, but those same critics have no recourse if the administration should slack at enforcement after passage.

More, and more, it seems, laws are seen as a signals to the executive and bureaucracy of topics to take up and dispose of as they please, rather than specific instructions in need of execution. That should trouble all of us.

Follow @joncoppage [7]

Comments Disabled (Open | Close)

Comments Disabled To "What’s a Law to an Executive?"

#1 Comment By Josh On July 3, 2013 @ 3:51 pm

Please note– Prop 8 would be crushed today if it were on a ballot. It may have been “popularly passed” in 2008, but it would lose in a landslide today. Failing to mention that is negligence at best.

#2 Comment By icarusr On July 3, 2013 @ 4:07 pm

“That should trouble all of us.”

Well, for eight years the constitutional and international prohibitions on torture did not trouble many conservatives; your newfound love for the law is duly noted.

“In related news, the Dodd-Frank financial system reform still has significant regulations outstanding as pressure is brought on regulators to delay and water down another complex mess of well-intentioned legislation.”

I don’t see how this is related at all to the observation above to the conclusion below. If anything, this single throwaway line suggests that the author does not have a full grasp of exactly what it takes to “execute” a law. Just in respect of one item of Dodd-Frank that I have had the misfortune to work on, the issue is not just attempts at watering down the regulations – and yes, there is that – nor the fact that the legislation is a mess – and yes, there is that too. The financial system – the global financial system – is a tangle of relationships and regulations, and US attempts at regulating its market inevitably affects the attempts by other countries at regulating theirs. Dodd-Frank assumed – wrongly, but not the first time – that the US could simply impose its will on other countries. Well, by and large it’s true, but still – it takes time not to piss off allies, and to make sure that the collateral damage to American interests as a result of such pissing off is kept to a minimum. Because the US financial system is the largest, most complex and most interrelated system in the world, regulating it was likely going to take a long time. Does that delay mean that the Administration is taking Dodd-Frank as merely a signal? No.

“In short, the Obama Administration is having difficulty implementing its signature legislative achievement, and so is pushing it back to try and ward off some of the consequences of a bungled law.”

Naturall, no mention is made that the Administration has had to deal with law suits from 30 governors or active hostility by one House of Congress; as if implementation takes place in a vacuum. In any event, the law may be bungled, but at least it is an attempt at addressing a problem; an attempt that Republicans made no effort to fix and for which they have no replacement solution. And what would you prefer – that instead of trying to sort out the bugs, the Administration presses ahead and implements a bungled law?

the Department of Justice had already refused to defend in court.

Please see comments on the Dreher thread. No Executive is under an obligation to appeal every defeat or to defend every law that it considers unconstitutional. Congress paid to hire lawyers and to defend the law, and it lost. What is the problem – other than the waste of money by Congress?

“Congress has abdicated so much legislative authority to the executive branch, however, that it has enabled any arbitrary implementation and enforcement of its laws that satisfy any executive’s political concerns.”

Delegation of regulation-making authority is quite normal in all democracies, and a fact of life in any complex system of government. Executive discretion is also part and parcel of implementing the law, simply because no legislature can foresee all problems and all particularities.

This reads well as a sort of Cato-ite or Ciceronian lament about bygone times – times that never existed and that if they were to return, would result in immediate breakdown of government.

#3 Comment By Clint On July 3, 2013 @ 4:59 pm

Obama is scared of the voter blowback to Obamacare in The 2014 Congressional Elections.

#4 Comment By JB On July 3, 2013 @ 6:00 pm

Josh, as someone who lives in California, I agree with your impression that an initiative to prohibit state government recognition of same-sex marriage would lose here today.

But until and unless California voters pass an initiative reversing Prop 8, it is the law and is entitled to at least as much judicial and executive respect as a statute enacted by the California Legislature. That principle has nothing to do with which side of the same-sex marriage debate we’re on.

#5 Comment By Hetzer On July 3, 2013 @ 6:43 pm

@icarusr – The American Conservative, so far as I know, opposed both Bush’s wars and his torture program. So they didn’t experience a Damascene conversion.

>Please note– Prop 8 would be crushed today if it were on a ballot. It may have been “popularly passed” in 2008, but it would lose in a landslide today. Failing to mention that is negligence at best.

Of course, if that is true, why wasn’t it repealed by a vote?

#6 Comment By Mont D. Law On July 3, 2013 @ 7:04 pm

(the executive should enforce Congress’s duly passed laws)

Apparently the House has no obligation to enact laws duly passed by a previous Congress and feels free to obstruct and nullify to their hearts content. I’m not sure why the executive should not feel free to do the same.

The founding fathers’ left you a system of government that was a thing of pure beauty. It’s taken you people only 237 years to grind it to a halt. How long do you think a government that can’t govern can last without having an enduring impact?

#7 Comment By Drew Regart On July 3, 2013 @ 7:34 pm

Please note that Josh, gays, and their supporters were assuring us all that Prop 8 was going to get “crushed” too. After all there are only so many Mormoms in California (haha miscalculated about one minority did Josh though). So if you have a nearby salt mine it wouldn’t be a bad idea to take it while reading Josh’s post.

#8 Comment By TomB On July 3, 2013 @ 9:26 pm

icarusr wrote:

“This reads well as a sort of Cato-ite or Ciceronian lament about bygone times – times that never existed and that if they were to return, would result in immediate breakdown of government.”

With all due respect icarusr, it strikes me that you very well could not be making that criticism of Coppage’s point at a worse point in history in terms of eviscerating its validity.

Periodically throughout our history of course there’ve been charges of imperial Executives, but it’s not so much that the validity of same faded but instead that the Executive aggrandizements were just eventually accepted over and over as being the new norm.

Thus a ratchet of sort developed, rather amusingly in retrospect only getting our elites attention when it was the liberal/Left complaining about perceived *right-wing* Executive Imperialism as per Arthur Schlesinger’s book of the same name.

Once again though what he complained about proved to be just another accepted click of the ratchet (with Schlesinger himself contributing to ignoring same by hypocritically but hilariously complaining about *congressional* imperialism when Congress was seen as being a problem for his favorite Mr. Clinton.)

But the heights that ratchet reached could hardly be denied when Bush I declared that if he wanted he could go to war with Saddam over Kuwait even in the face of the total absence of of any Congressional authorization, and then too we’ve all see the incredible Executive power grabs in the Bush II Presidency, including the incredible claim that he could violate existing wire-tapping laws at will on all of us.

And even if we stopped right there any criticism of Copppage’s point would seem rather wildly untimely, but what have we seen since then even?

Why, for instance, it’s Mr. Obama’s *open* declaration that he just simply isn’t going to enforce the immigration laws anymore for some (Those who would have qualified for amnesty under the failed “Dream” Act.) Without even the *slightest* pretense of need due to any unconstitutionality anywhere.

I.e., perhaps *the* most breathtaking assertion by *any* Executive *ever* that they are free to violate their oath to faithfully execute their Office and preserve, protect and defend the Constitution and to “take Care that the Laws be faithfully executed.”

And yet … *this* is the time in history to ridicule the claim that there’s been a worrying over-concentration of power in the Office of the President? Hot on the heels of our most recent Presidents proclaiming that they can take us to war all on their own, violate the laws against spying on us all on their own, and just simply refuse to enforce the law against anyone they want all on their own?

The one thing that icarusr’s comment does illustrate though is a major reason why all this has happened: Being concerned that much of this is now just aimed at Obama and/or the Dems or liberals, it is this precise partisan reaction to defend one’s partisan Executive choice that has let our Executives get away with it.

That is, when Republican/conservative Presidents have grossly over-stepped their bounds, sure enough there’s the Republican Party/conservatives defending same. Just as icarusr is now defending Obama/the Dems/liberals.

But I see no evidence Coppage is guilty of this, and indeed lots of his piece was taken up with taking Romney’s plans to task.

So what’s the hope when someone comes out in even the most non-partisan a manner and slams Executive Imperialism as Coppage did and … gets dismissed in reaction?

Or, to put it another way, how much longer before we just dispense with Congress and law-making entirely and leave everything up to the whim of our Executives?

#9 Comment By cka2nd On July 4, 2013 @ 12:47 pm

Frankly, I think this is a tempest in a teapot, and even silly by that relaxed standard. There are far better examples of executive over-reach by this President and his administration to complain about than delaying, even for crassly political reasons, the implementation of one part of one great, big, complex law.

The dereliction of duty by both the Democratic President and Democratic Congress in investigating the financial crisis during the first two years of the Obama Administration is, in my view, a far better example of the strengthening of the Executive and the weakening of the Legislative branches.

#10 Comment By Ray S. On July 4, 2013 @ 3:55 pm

It is regrettable that the law is being delayed. People seeing what a disaster it would be would force some kind of legit,not just partisan house GOP,effort at repeal. Already,the senate earlier this year voted 79-20 to get rid of the onerous tax on medical devices,a way to pay for the “Affordable Care Act”. Probably would not take much to get a number of Democrats on board with repeal if enough hell was raised(especially those from red,purple and light blue states.