I recently heard the president brazenly proclaim that Obamacare is the law of the land. Well, the Constitution is clear on the law of the land, as the President calls it. Article. II. Section. 3. of the Constitution says, “he [the president] shall take care that the laws be faithfully executed.” I do not see where an option is given to a president to pick and choose which laws will faithfully be executed and which will not. So how does President Obama simply strike the employer mandate from Obamacare under the ruse of delay? Writing in The Wall Street Journal, Michael McConnell outlines President Obama’s dereliction of duty.
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.”
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