“To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.”
— U.S. Supreme Court, 1838
Congressional Republicans’ long-simmering dismay about Barack Obama’s offenses against the separation of powers became acute when events compelled him to agree with them that the Affordable Care Act could not be implemented as written. But even before he decreed alterations of key ACA provisions — delaying enforcement of certain requirements for health insurance and enforcement of employers’ coverage obligations — he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind education law; and some enforcement concerning marijuana possession; and the prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration laws pertaining to some young people.
Republicans tend to regard Obama’s aggressive assertion of enforcement discretion as idiosyncratic — an anti-constitutional impatience arising from his vanity. This interpretation is encouraged by his many assertions that he “can’t wait” for our system of separated powers to ratify his policy preferences.
It has, however, become “a nearly irresistible temptation” for presidents to infer permission from the courts’ abandonment of judicial review that limits Congress’ power to delegate essentially legislative powers to the executive branch. So, Price asks: “If President Obama may postpone enforcement of the ACA’s insurance requirements and employer mandate, could a subsequent president ignore the Affordable Care Act altogether?”
In 1998, the Supreme Court held that “there is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.” But by claiming a power to revise laws through suspension of portions of them, Obama is exercising what Price calls a “second veto.” Actually, he is wielding what the Constitution forbids and no statute can grant — a line-item veto, which violates the Presentment Clause. The Constitution says “every bill” passed by Congress shall be “presented” to the president, who shall sign “it” or return “it” with his objections. The antecedent of the pronoun is the bill — all of it, not bits of it.
The sprawl of the modern administrative state requires vast delegations of powers, often indistinguishable from legislative powers, to an executive branch whose scale defies even adequate congressional oversight. Fortunately, in the Newtonian physics of our constitutional system, wherein rivalries among the three branches are supposed to trend toward equilibrium, actions often produce equal and opposite reactions. Obama’s aggressive assertions of executive discretion are provoking countervailing attention to constitutional proprieties. His departures from the norms proper to the Take Care Clause may yet cause Congress to take better care of its prerogatives.