A royal prerogative

Last week the Obama administration disclosed a big story in a small way. The big story: the administration is delaying the enforcement of the Obamacare employer mandate for one year. The small way: a post by Treasury Assistant Secretary Mark Mazur.

The post whipped up words into cotton candy. The abuse of language in the announcement is disgusting. Nothing to see here, just government officials reflecting on their engagement in “a dialogue with business.” If we were to take Mazur at face value, we would believe that he proudly presents another example of good government best practices. Mazur’s cooing baby talk (also known as infant-directed speech or motherese) to the contary notwithstanding, his post is transparently false to anyone with the slightest understanding of what is going on.

The method of the announcement is suggestive of shame and embarrassment. The shame and embarrassment are overdetermined. To take just one factor, whence the authority to decline to enforce a law enacted by Congress and signed by the president, indeed relentlessly promulgated by the administration?

Mazur didn’t address that question, and the method of the announcement accommodated his silence. In today’s Wall Street Journal former Tenth Circuit Judge Michael McConnell addresses the question. McConnell observes: “Article II, Section 3, of the Constitution states that the president ‘shall take Care that the Laws be faithfully executed.’ This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”

McConnell contends that the decision to adopt a policy of nonenforcement is a royal prerogative:

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.”

In the understanding of progressives such as Obama, however, we know that the Constitution is a living document. In terms of executive power, it has “evolved” in the direction of eighteenth-century kingship.

Obama’s decision to decline enforcement of a key component of his signature achievement is not without precedent. McConnell puts the decision in context:

This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.

I think that a close reading of Mazur’s motherese reflects the administration’s inability to enforce the employer mandate as required by the law. Underlying Mazur’s announcement, I would guess, is the ancient justification of necessity. If so, it is another reason for the shame and embarrassment implicit in the manner of the administration’s announcement.

NOTE: Via RealClearPolitics, I see that Margot Sanger-Katz’s National Journal article supports my speculation regarding the necessity underlying Mazur’s announcement.

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