Obama sees the Constitution’s separation of
powers as a quaint anachronism.
As a
reaction to the crack epidemic of the 1980s, many federal drug laws carry strict
mandatory sentences. This has stirred unease in Congress and sparked a
bipartisan effort to revise and relax some of the more draconian laws.
Traditionally — meaning before Barack
Obama — that’s how laws were changed: We have a problem, we hold hearings, we
find some new arrangement, which is ratified by Congress and signed by the
president.
That was then. On Monday, Attorney
General Eric Holder, a liberal in a hurry, ordered all U.S. attorneys to simply
stop charging nonviolent, non-gang-related drug defendants with crimes that,
while fitting the offense, carry mandatory sentences. Find some lesser,
non-triggering charge. How might you do that? Withhold evidence — e.g., about
the amount of dope involved.
In other words, evade the law, by
deceiving the court if necessary. “If the companies that I represent in federal
criminal cases” did that, said former deputy attorney general George
Terwilliger, “they could be charged with a felony.”
But such niceties must not stand in the
way of an administration’s agenda. Indeed, the very next day, it was revealed
that the administration had unilaterally waived Obamacare’s cap on a patient’s
annual out-of-pocket expenses — a one-year exemption for selected health
insurers that is nowhere permitted in the law. It was simply decreed by an
obscure Labor Department regulation.
Which followed a presidentially directed 70-plus percent subsidy for the
insurance premiums paid by congressmen and their personal staffs — under a law
that denies subsidies for anyone that well-off.
Which came just a month after the
administration’s equally lawless suspension of one of the cornerstones of
Obamacare: the employer mandate.
Which followed hundreds of Obamacare waivers granted by Health and Human
Services secretary Kathleen Sebelius to selected businesses, unions, and other
well-lobbied, very special interests.
Nor is this kind of rule-by-decree
restricted to health care. In 2012, the immigration service was ordered to cease
proceedings against young illegal immigrants brought here as children. Congress
had refused to pass such a law (the DREAM Act) just 18 months earlier. Obama
himself had repeatedly said that the Constitution forbade him from enacting it
without Congress. But with the fast approach of an election that could hinge on
the Hispanic vote, Obama did exactly that. Unilaterally.
The point is not what you think about the merits of the DREAM Act. Or of
mandatory drug sentences. Or of subsidizing health-care premiums for
$175,000-a-year members of Congress. Or even whether you think governors should
be allowed to weaken the work requirements for welfare recipients — an authority
the administration granted last year in clear violation of section 407 of the
landmark Clinton-Gingrich welfare reform of 1996.
The point is whether a president, charged
with faithfully executing the laws that Congress enacts, may create, ignore,
suspend, and/or amend the law at will. Presidents are arguably permitted to
refuse to enforce laws they consider unconstitutional (the basis for so many of
George W. Bush’s so-called signing statements). But presidents are forbidden
from doing so for reason of mere policy — the reason for every Obama violation
listed above.
Such gross executive usurpation disdains
the Constitution. It mocks the separation of powers. And, most consequentially,
it introduces a fatal instability into law itself. If the law is not what is
plainly written, but is whatever the president and his agents decide, what’s
left of the law?
What’s the point of the whole legislative process — of crafting various
provisions through give-and-take negotiation — if you cannot rely on the fixity
of the final product, on the assurance that the provisions bargained for by both
sides will be carried out?
Consider immigration reform. The essence
of any deal would be legalization in return for strict border enforcement. If
some such legislative compromise is struck, what confidence can anyone have in
it — if the president can unilaterally alter what he signs?
Yet this president is not only untroubled
by what he’s doing, but open and rather proud. As he tells cheering crowds on
his never-ending campaign-style tours: I am going to do X — and I’m not going to
wait for Congress.
That’s caudillo talk. That’s
banana-republic stuff. In this country, the president is required to win the
consent of Congress first.
At stake is not some constitutional
curlicue. At stake is whether the laws are the law. And whether presidents get
to write their own.
— Charles Krauthammer is a
nationally syndicated columnist. His email address is letters@charleskrauthammer.com.
© 2013 The Washington Post Writers Group.
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