The road to Obamacare, cont’d

This week the Obama administration announced that it is delaying the implementation of Obamacare’s employer responsibility provision. Now employers won’t have to worry about compliance with the provision until 2015, after the midterm elections.

The announcement followed best scandal management practices. It was posted without fanfare on the Treasury Department Web site. It was released on the eve of a long holiday weekend. The story was designed to escape the attention of all but those with a legal need to know, almost as though it was something to be ashamed of.

The Wall Street Journal explains the delay in a knowledgeable editorial: “This is probably an admission that Treasury’s information technology isn’t ready to process and cross-check paperwork across the 5.7 million businesses in America, especially the pass-through S-corps and partnerships that file under the individual tax code. This is more than a typical government snafu. It relates directly to the design of the law, which was thoughtlessly written and rammed through Congress with instructions for the bureaucracy to figure it all out.”

There is a larger point to the announcement, referred to in the Journal editorial as its “dubious legality.” The road to Obamacare is the road to serfdom.

The announcement fits into the larger pattern of lawlessness with which we have become familiar in the Age of Obama. It has become something of a defining characteristic, an aspect of what Michael Barone first identified as “gangster government” in a May 2009 column on the Chrysler bankruptcy. Mario Loyola observes:

During the presidency of Barack Obama, we’ve learned something about our Constitution that we did not know: The president can simply refuse to enforce whatever laws he doesn’t like. Not as a matter of prosecutorial discretion, mind you, but in general, as to whole categories of people.

First it was DOMA, in a sop to the gay lobby. Then it was the immigration laws, which the president has decided not to enforce against young illegal immigrants. Now it’s the crucial employer-insurance mandate in Obamacare, which is “suspended” for a year, because the president feels like it. I say “crucial” because, absent the employer mandate, the official estimate of how much Obamacare is going to cost, and how it’s going to affect the number of uninsured, is no longer valid.

George Will puts it this way:

Although the Constitution has no Article VIII, the administration acts as though there is one that reads: “Notwithstanding all that stuff in other articles about how laws are made, if a president finds a law politically inconvenient, he can simply post on the White House Web site a notice saying: Never mind.”

Loyola elaborates on the point:

The Constitution states that the president “shall take care that the laws be faithfully executed.” Not “shall take care that the laws be faithfully executed if he feels like it,” which is how the Obama administration apparently reads the provision. Rather, he must see that the laws are faithfully executed, period. Otherwise, there’s no point to the veto power. The president can simply decide, by his sole imprimatur, to nullify any law he doesn’t like.

Alas, there is no way to enforce the president’s obligation to see that the laws are faithfully executed. The courts will not issue a mandamus — it is a “political question.” It’s probably not a “crime or misdemeanor” for him to fail to enforce a law, so he probably can’t be impeached for it. The reason presidents have enforced the rule of law is, generally, the people’s expectation that they will. But if the president simply ignores the Constitution, and the people cheer him on (as happened during the administration of Franklin D. Roosevelt), then where does that leave us?

In the middle of a wide-open Pandora’s box, that’s where.

This is is a point to which we will undoubtedly have occasion to return in coming days.


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