Ineffable limits of executive power

As we all know, President Obama has suspended the enforcement of various provisions of federal law for blatantly political purposes, Obamacare foremost among them. It doesn’t seem to be within the purview of the man (or woman) whose constitutional charge is to “take Care that the Laws be faithfully executed….” As Nancy Pelosi might put it, we had to elect him president “so that you can find out what [was] in it,” it being executive power.

That’s the bad news. The good news — maybe — is that a Republican president could go wild and suspend enforcement of the whole shebang. I didn’t understand what Mitt Romney was talking about during the 2012 campaign when he said he would issue an executive order with waivers that would undo Obamacare. Lanhee Chen explains what he was talking about here, but it now sounds so tame.

If a Republican president were to suspend enforcement of key provisions of Obamacare, the Democrats would then discover the limits of executive power. Of that much we can be sure. In the meantime, however, the limits remain something of a mystery. Over at the Weekly Standard John McCormack reports that he quizzed three Democratic senators (and not the dimmest bulbs in their ranks either, although John doesn’t say that):

“I’ve seen the administration’s argument as to why they have the authority to make those changes, and I don’t challenge that,” Senator Tim Kaine, a Democrat from Virginia, told THE WEEKLY STANDARD on Tuesday in the Capitol building. But the senator pleaded ignorance when asked if the president could suspend the rest of the law:

THE WEEKLY STANDARD: How do you determine if the president couldn’t do something–that it does exceed his authority? Are there any parts of the law that the president doesn’t have the authority to delay or suspend?

KAINE: I don’t know. I’m not the scholar on that.

Scholarly expertise was of no help to Democratic senator Richard Blumenthal of Connecticut, a former state attorney general, who was similarly unable to answer the question:

TWS: Are there any delays the president wouldn’t have the authority to make? I mean, could the president potentially suspend the entire law if he wanted to?

BLUMENTHAL: I can’t answer a hypothetical.

TWS: So you can’t say if there are any parts of the law he couldn’t delay?

BLUMENTHAL: I can’t answer a hypothetical about any–

The Connecticut senator’s voice trailed off as the doors closed on the senators-only elevator.

Senator Bob Casey, a Democrat from Pennsylvania, told THE WEEKLY STANDARD that he doesn’t “know of any legal impediment” preventing the executive branch from delaying the employer or individual mandates.

“Either you want to make it work or you want to get rid of it,” Casey said. “If you want to make it work you’ve got to put in place measures or strategies that will ensure that it does work over time. And sometimes that means going forward, and sometimes that means waiting for a more optimal time for something to move forward.”

But couldn’t a future president suspend the entire law? “I don’t want to speculate what a future president might do,” Casey replied.

It’s a good question, and we pray devoutly for the day when a Republican president will put the constitutional mettle of these Democratic gentlemen (and I use that term loosely) to the test.

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