Last week’s delay of the Affordable Care Act’s insurance mandate has observers declaring that President Obama’s Hurricane Katrina has made landfall. Or so declare pundits in the national papers and on the TV talk shows. But ObamaCare is no Katrina. It is much worse, at least for the presidency and the constitution.
Katrina ruined President George W. Bush’s second term. The images of desperate families trapped in the New Orleans Superdome, coupled with the Iraq insurgency, displayed impotence in the executive. A massive Republican defeat in Congress soon followed.
Mr. Obama’s incompetence in implementing his own health care scheme may seem like another presidential failure in the making.
Mr. Obama does not want to defeat the bureaucracy, he wants it to win.
His administration had already delayed requirements for employer-provided insurance, in violation of his own law’s deadlines. It could not roll out a functional marketplace for insurance policies, even though it had three years to prepare.
His waiver of his own law’s regulation notwithstanding, Mr. Obama has now broken his promise to voters that “if you like your policy, you can keep it.” His ratings are diving to record lows and his congressional allies are jumping ship. Almost 40 House Democrats voted for a Republican bill to temporarily waive ObamaCare requirements for all health policies.
These ObamaCare setbacks, however, represent failure of a wholly different dimension. Bush had to respond to unpredictable events: an act of mother nature in New Orleans and an act of war in Iraq.
For the Framers of our Constitution, such unforeseen challenges justified the very creation of a strong president. They concentrated the nation’s executive power in a single person who could act with “decision, activity, secrecy, and dispatch,” Alexander Hamilton explained in “Federalist 70.”
Diffusing executive power among multiple parties would sow confusion and destroy accountability and frustrate the nation’s ability to respond to “the most critical emergencies of the state.”
Bush’s second term ran aground because he failed to use the president’s powers effectively in the very setting for which they were created. He eventually recovered with the surge in Iraq, a brave decision that showed the presidency at its best.
Obama is hitting the shoals for the exact opposite reason. ObamaCare’s collapse does not result from an act of nature or the attacks of a foreign enemy. Instead, it is a perversely self-inflicted, man-made disaster that replaced the efficiency of the private markets with the tangle, confusion, and ideological bias of government bureaucracy.
By suspending the insurance mandate for a year, Mr. Obama does not use the powers of the presidency to protect the nation from unforeseen events. He instead uses the executive to protect the American people from himself and his signature policy.
Every time he waives yet another ACA regulation, Mr. Obama blocks himself from acting and allows the return of the private market that existed before his election.
The Framers never vested the presidency with great powers for such purposes. To avoid responsibility for his policies, Mr. Obama must violate his constitutional duty to “take Care that the Laws be faithfully executed.”
According to long practice, a president may selectively choose the cases to prosecute because the federal government does not have the limitless resources needed to chase down every violation of the laws.
But the executive power over prosecution does not allow a president to refuse to simply enforce all cases under a law. That amounts to a suspension power that the Framers consciously rejected by including the Take Care Clause in Article II of the Constitution.
“A feeble execution is but another phrase for a bad execution,” Hamilton argued in “Federalist 70,” “and a government ill executed, whatever may be in theory, must be, in practice, a bad government.”
Executive vigor should support “the steady administration of the laws.” Presidents can only refuse to execute an Act of Congress when it conflicts with the higher law of the Constitution – the same right that gives the courts the power of judicial review.
Mr. Obama introduces enormous instability into our constitutional system by playing pick-and-choose just for policy reasons.
Unfortunately, it is the same tactic he has used before when he cannot persuade Congress. He suspended the deportation of young illegal aliens because Congress would not pass the Dream Act; his Justice Department refuses to enforce the anti-drug laws in states with liberal marijuana laws; his administrators have gutted federal welfare-for-work requirements by defining “work” into nothing.
Such dereliction of duty deprives the rule of law of the necessary virtue of certainty, it subjects private citizens and the markets to arbitrary and conflicting legal duties, and it destroys the ability of future Congresses and presidents to trust each other.
Turnabout will ultimately be fair play. Imagine the howls of Democrats when President Ted Cruz unilaterally introduces a flat tax in 2017 by ordering the IRS not to pursue people who pay no more than 15 percent income tax.
Mr. Obama’s supporters might respond that the modern American voter wants the president to tame the beast of the welfare state. The electorate understands that government is too large to coordinate coherently, too sprawling to be controlled, to disorganized to act rationally.
Presidents Richard Nixon, Ronald Reagan, George W. Bush, and even Bill Clinton found success by campaigning against bureaucracy.
Reagan attacked wasteful spending, Clinton signed welfare reform, and Bush to tried to overhaul education and stop environmentalism.
They understood that government cannot distribute goods and services and make social choices as effectively the free market and civil society.
Mr. Obama, however, cannot believably take on their mantle because he has served as the welfare state’s greatest enabler since President Lyndon Johnson.
He has overseen the greatest expansion of federal spending and the national debt in American peacetime history. He and his party have federalized vast swaths of private life, such as energy, finance, automobiles and now health care.
Mr. Obama does not want to defeat the bureaucracy, he wants it to win.
For most presidents, restoring one-sixth of the American economy to the free markets would be cause for celebration, but for this one it is an admission of failure. It is a failure only exceeded by the violation of the Constitution and the distortion of the American political system.
The Framers expected the separation of powers to be self-correcting by pitting “ambition against ambition.”
Congress must fulfill the Constitution’s design by letting ObamaCare go down in flames, repealing it, and replacing it completely with pro-market reforms.
John Yoo, is a law professor at the University of California at Berkeley. He served as an official in the Bush Justice Department from 2001-03 and is author most recently of "Taming Globalization: International Law, the U.S. Constitution, and the New World Order" (Oxford 2013).