Friday, July 26, 2013

A more substantial disregard of the law

I was happy to see that the editorial board of the Milwaukee Journal Sentinel has decided that respect for the rule of law has become an important issue. What I found astonishing is that, while the board mentioned the desire of a few rogue Republicans who wanted states to "nullify" the badly misnamed "Affordable Care Act"  by arresting federal officials who sought to enforce it  (admittedly a goofball idea), it has ignored the actual nullification undertaken by the President.

There is no legal justification - none - for delaying the implementation of the law's employer mandate. (Yes, I know a few people have tried a justification but have only managed to resemble Jon Lovitz' Tommy Flanagan.) The law clearly requires that the employer mandate be enforced beginning in 2014 and the President's failure to do so is a blatant disregard of his constitutional duty to faithfully execute the laws. That editorial writers and others ostensibly dedicated to the "rule of law" are not up in arms about this is amazing.

While it doesn't matter why the administration is doing this, I think that there are two reasons. First, it has finally figured out that implementation of the plan is going to be a train wreck. They don't that to occur during an election year.

Second, we have always been told that ObamaCare was a complex mechanism that required all of its various elements to work. For example, in defending the individual mandate, the administration argued that it was necessary because of the requirements for community rating (sick people cannot be charged more) and guaranteed issue (pre-existing conditions must be covered.) Once you enact the latter two, people must be compelled to buy coverage or the cost of insurance will go through the roof. Once you set up exchanges and subsidies, you need the employer mandate to prevent - or at least limit - the dumping of employer coverage.

So ObamaCare cannot work without the employer mandate or, for that matter, verification of a person's eligibility for coverage (which has also been scuttled by Obaman decree). It doesn't take a cynic to think that the President is delaying the necessary pain to get the public wedded to the benefits that cannot exist for long without them. The hope is that the political landscape will change so that a law which Republicans have always said cannot work can be modified in a way that the Democrats prefer.

However you feel about health care policy, this should not be made to happen by ignoring mandated provisions of the law.

The Journal Sentinel editorial raises the City of Milwaukee's defiance of state repeal of residency requirements and the Mukwonago School Board's commitment to hang on to its "Indians" nickname as examples of "ignoring the law." Perhaps, but neither holds a candle to what Obama has done.

There are occasions when the only way - or at least the only practical way - to challenge an unconstitutional law is to violate it and then raise its unconstitutionality in ensuing enforcement proceedings. To be sure, there are other ways to do it but there can be difficulties that can make those routes impractical or even unavailable. I'm not saying this is so for the City of Milwaukee or Mukwonago schools, but the point is that both bodies will quickly have to defend their position in court.

Because of restrictive rules regarding standing (i.e.., the ability of a person to even bring a suit) in federal court, that may not happen with the President's defiance of the law. All the more reason that those who value the rule of law should be speaking loudly.

Yes, the handful of legislators who seemed to advocate arresting federal officials were off the rails. Perhaps the City of Milwaukee and Mukwonago schools should take a different route. But to get the vapors over these examples in the face of an extraordinary piece of national lawlessness is like the cop who writes a parking ticket in front of a bank that is being robbed.

Cross posted at Purple Wisconsin.

1 comment:

George Mitchell said...

Professor, perhaps you penned from the comforts of your Marquette office a spirited condemnation for those “few rogue” Wisconsin Republican state senators who beat their chest, cried nullification, and vowed to “carry feet first” federal officials who dared to implement Obamacare. If you indeed scribed such a brilliant piece of writing, bravo. Otherwise, you are simply another long-winded observer, liberal or conservative, who enjoys seizing the moment to play “Gotcha”.

From my perspective, of course President Obama is not carrying out his constitutional duty to faithfully execute the laws. If Congress had any gumption, they would hold him accountable. Nah, there are mid-term elections to win, palms to grease, and donations to procure.

But please note the cagey professor is making a concerted effort to convince his impressionable readers by wildly pronouncing “there is no legal justification for delaying the implementation of the law’s employer mandate”. Note that Obama’s action, compared to other similar conduct, is a “more substantial disregard of the law”. Apparently, lawbreaking to the professor is to be placed on a partisan continuum.

Is it novel for a president to refuse to execute a law that defines their administration, one they personally shepherded through Congress? Never one to avoid hyperbole, this “extraordinary piece of national lawlessness” is...quite...ordinary.

Moreover, if Obamacare has major flaws as the professor notes, and Obama is delaying part of its implementation perhaps in recognition of those challenges, could this delay actually be BENEFICIAL in the long-run, considering that its opponents are working feverishly to blunt its impact?