Outlets are quoting Democratic operative Howard Dean saying of President Barack Obama suspending certain Obamacare requirements, “I wonder if he has the legal authority to do this.”
To remove all doubt: The Take Care Clause of the Constitution absolutely forbids any president from doing exactly what Obama did Thursday.
Obama said he would allow insurance companies to keep offering previously-offered insurance plans that Americans would like to keep. Nobody knows if this means all plans, or only some of them, and how the White House will make such determinations. He says he has “enforcement discretion” to make this change to the Affordable Care Act unilaterally, without consulting Congress.
This is a frightening claim of a sweeping power that is completely inconsistent with the Constitution. A president has “prosecutorial discretion” to prioritize which lawbreakers to prosecute in federal court, but there is no “enforcement discretion” to determine which laws on the books he will enforce.
Article II, Section 3 of the U.S. Constitution commands of every president: “he shall take Care that the Laws be faithfully executed.” Like every provision in the Constitution, it has a legal meaning—and that meaning is the Supreme Law of the Land, which Congress, the courts, and—yes—each president is bound by his oath of office to follow carefully.
Everyone should know from their high-school government classes that Article I of the Constitution gives Congress exclusive power to make federal laws, and Article II of the Constitution gives the American president the executive power to administer and enforce those laws. Article II then includes the language about how the president must faithfully execute those laws.
Among other things, the Take Care Clause was inserted in the Constitution to abolish the Royal Prerogative that the Framers of the American Constitution knew from their lives as Englishmen. It was the power of the king of England to disregard or effectively suspend Acts of Parliament. The king could not make laws, but he could shelve a law that Parliament had passed.
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