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Is Obama an über-president? [Commentary]

Responding to the Obama Administration's decision to delay enforcement of certain provisions of the Affordable Care Act (ACA), a number of politicians and commentators have argued that the president is running roughshod over the U.S. Constitution.

To this point, constitutional law professor Jonathan Turley recently argued that such actions are presenting a "troubling mosaic" of executive power, and that "there will come a day when people step back and see the entire mosaic for what it truly represents: a new system with a dominant president with both legislative and executive powers." And at a recent House Judiciary Committee hearing convened to examine such executive actions, the committee chairperson, Rep. Robert Goodlatte, a Virginia Republican, noted that "President Obama's actions have pushed executive power beyond all limits and created what has been called an 'über-presidency'" by neglecting his constitutional duties. Presumably, the duty to which he refers is found in Article II, Section 3 of the U.S. Constitution, which requires the President to "take Care that the Laws be faithfully executed."

Is President Obama abdicating his constitutional duties? To answer, one must consider both the relevant text of the ACA and any legal precedent that considers whether the executive branch enjoys the discretion that it claims to have. Fortunately, one can see that President Obama is not abdicating his constitutional duties — and that the Executive Branch does indeed enjoy such discretion.

Part II of the ACA concerns "employer responsibilities" and amends the Internal Revenue Code to vest the secretary of the Treasury with discretion in the timing of enforcement. Specifically, in the section of Part II that concerns the "shared responsibility for employers regarding health coverage," the ACA details certain employer consequences for non-compliance with the employer mandate. As for the timing of when employers must account for the coverage of their employees, this section notes that the secretary "shall, at such a time as the Secretary may prescribe," require employers to make such an accounting. One can find such language throughout the ACA.

Furthermore, in response to arguments that such discretionary enforcement amounts to an indefinite waiver, the Treasury noted in a letter to the House Energy and Commerce Committee that this discretion, "is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by Section 7805(a) of the Internal Revenue Code," which states "the Secretary shall prescribe all needful rules and regulations for the enforcement of this title." Moreover, the letter noted that "this authority has been used to postpone the application of new legislation on … prior occasions," such as delaying the penalty authorized under the Small Business and Work Opportunity Act of 2007, which occurred under the administration of President George W. Bush.

While such discretion may seem unreasonably broad, there is sufficient legal precedent for its exercise. In a 1985 Supreme Court case, Heckler v. Chaney, the court considered whether a federal agency was legally obliged to enforce a particular law. The justices concluded that the Judicial Branch has no power to review an agency's enforcement or non-enforcement of a law if the law in question is understood as vesting discretion within that agency of the Executive Branch (e.g. Treasury, Labor, etc.). The court held that an Executive Branch decision not to enforce a law is similar to the decision of a prosecutor in the Executive Branch not to indict, "a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.'"

Finally, in noting that the decision not to enforce is traditionally left to the discretion of the Executive Branch, the court held that Congress has the authority to alter this tradition. In the present case, however, nothing in the ACA suggests that Congress chose to exercise this authority.

Given the above, the Obama Administration is acting well within legal precedent in its enforcement of the ACA, proclamations of the rise of an "über-presidency" notwithstanding.

Michael B. Runnels is an associate professor and interim department chair of law and social responsibility in the Sellinger School of Business at Loyola University Maryland. His email is mrunnels@loyola.edu.

To respond to this commentary, send an email to talkback@baltimoresun.com. Please include your name and contact information.

Copyright © 2015, The Baltimore Sun
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