The Case for Suing the President ….Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.

BY David B. Rivkin Jr. and Elizabeth Price Foley – The Wall Street Journal


‘So sue me” is President Obama’s message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president’s failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no “stunt,” as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution’s separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to “take care that the laws be faithfully executed.” When a law is unambiguous, the president cannot rewrite it to suit his own preferences. “The power of executing the laws,” as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, “does not include a power to revise clear statutory terms that turn out not to work in practice.” If a law has defects, fixing them is Congress’s business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the “Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”

The barriers also reflect the Framers’ belief that some powers are better suited for a particular branch of government because of its institutional characteristics.

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn’t mean Congress is “broken.” A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president’s bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary’s highest duties.

In Garcia v. San Antonio Metropolitan Transit Authority(1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states’ claim, declaring that the so-called vertical separation of powers—federalism—was “more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.” Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states’ rights against federal encroachment. It was a mistake the court would quickly regret.

Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to “take title” to low-levelradioactive waste. The court abandoned the “hands off” position of Garcia because if it did not do so, the federal government could coerce states to do the federal government’s bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch’s constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary’s power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to “judges” in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president’s unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.



Desperate Democrats Can’t Escape Obama

By Ramesh Ponnuru – Bloomberg

“President Obama’s new EPA rule is more proof that Washington isn’t working for Kentucky.” Alison Lundergan Grimes, the Democrats’ great hope for beating Senate Republican leader Mitch McConnell, is doing her best to keep voters from associating her too closely with the president.

She’s not the only one. Natalie Tennant, the Democratic Senate candidate in West Virginia, is running a pro-coal ad in which she shuts off the power to the White House.

Democrats are distancing themselves from the president across the country, even in blue states.

Colorado, a state Barack Obama won twice, has a Democratic governor and two Democratic senators. One of those senators, Mark Udall, is up for re-election this year. He decided not to attend a fundraiser with the president in his own state a few weeks ago. It was more important for Udall to stay in Washington to take part in the 71-26 confirmation vote for Obama’s nominee to run the Department of Housing and Urban Development.

Not coincidentally, about 54 percent of Coloradans disapprove of Obama’s job performance.

If they win, Grimes, Tennant and Udall will almost always vote with the Obama administration over the next two years, then spend four more largely voting in ways Obama would approve of. The parties are pretty unified these days ideologically.

What’s more, voters seem to know it. Most candidates who try to separate themselves from their party’s leadership end up losing. (There are occasional exceptions: In 2010, Joe Manchin was able to separate himself from Obama in West Virginia by running an ad in which he took a shotgun to a copy of the cap-and-trade bill the administration was backing. But he was already a popular governor.)

When there’s a wave for one party or the other in an election, voters simply don’t seem to do much discriminating among the candidates. Bob Ehrlich was a successful governor of Maryland in 2006, when he ran for re-election. But that was a terrible year for Republicans. He was a moderate and had healthy approval ratings. None of it saved him. He was brought down by the unpopularity of the Iraq war, even though, as a governor, he had nothing to do with it.

Likewise, a lot of conservative Democrats who had voted against Obama’s main priorities — including about half the House’s “Blue Dog” coalition — got swept out in a huge Republican wave in the 2010 midterm elections.

When a candidate tries to separate himself from his party’s leadership, he’s assuming that the party’s core supporters will understand that he needs to do it: that the checks will keep arriving and the activists will keep knocking on doors. But there’s always the risk of demoralization.

In a poll released over the weekend, Tennant was eight points behind in her race. If that keeps up, national Democrats will turn off the power to her campaign well before Election Day.




Lois Lerner email: Some in GOP ‘crazies’

By Rachael Bade – Politico

Ex-IRS official Lois Lerner refers to some Republicans as “a—holes” and “crazies” in an exchange from 2012, according to emails released by House Republicans on Wednesday.

“Maybe we are through if there are that many a—holes,” the former head of the IRS tax-exempt division wrote in an exchange with an unnamed non-IRS official, dated Nov. 9, 2012. Later she added: “We don’t need to worry about alien terrorists. It’s our own crazies that will take us down.”

Although Lerner doesn’t say “Republican” or “conservative” in the particular emails, she and the unnamed person were discussing conservative talk radio hosts.

Lerner, through her lawyer, maintains her innocence, and the new seemingly personal exchange does not prove that she allowed bias to infiltrate her job, merely that she had a number of opinions. Earlier emails released by the panel suggested she was a Democrat.

She is again topping headlines after the IRS last month told Congress that it lost two years’ worth of her emails in a 2011 computer crash, stifling congressional investigators who wanted to read all her correspondence in search of a smoking gun. Lerner has denied suggestions by Republicans that she intentionally crashed her computer.

Republicans say the new emails further their argument that Lerner — whose division singled out tea party groups seeking tax breaks for additional scrutiny — was biased, arguing in a news release that the exchange “directly demonstrates Ms. Lerner’s deep animus towards conservatives.” Democrats have called the relentless focus by the GOP a partisan witch hunt.

“In light of this new information, I hope DOJ will aggressively pursue this case and finally appoint a special counsel, so the full truth can be revealed and justice is served,” Ways and Means Chairman Dave Camp (R-Mich.) said in a letter to the Justice Department.

Ways and Means Republicans released the correspondence a day before lawmakers were to skip town for August recess. At the same time, two other House committees were holding hearings on the IRS targeting, though no government witnesses were testifying.

The email exchange begins on Nov. 8, 2012, when Lerner forwarded a notice of “suspension of retention” to the individual in the conversation from her BlackBerry, using her official IRS email account. The notice, she explained, “said they have to stop my [retention] pay … because I made too much this year and will give me the rest next year in a lump sum.”

The individual’s response is redacted, but he or she eventually asked her the next morning “what’s in store for the weekend?” Lerner appeared to be in the U.K. at the time, writing back that she planned to get on a bus to tour Windsor Castle, Stonehenge and Oxford.

The conversation turned political when she said she “overheard some ladies talking about America today” and that the women said “we’ve bankrupted ourselves.”

“Strange,” Lerner wrote of what she overheard.

The individual responded by mocking conservative talk radio: “Well, you should hear the whacko wing of the GOP. The US is through; too many foreigners sucking the teat; time to hunker down, buy ammo and food and prepare for the end. The right wing radio shows are scary to listen to.”

Lerner responded moments later: “Great. Maybe we are through if there are that many a—holes.”

The individual continues: “And I’m talking about the hosts of the shows. The callers are rabid.”

Lerner wrote back: “So we don’t need to worry about alien terrorists. It’s our own crazies that will take us down.”

The emails were part of a packet of “additional evidence” Ways and Means sent to the Justice Department on Wednesday, adding to its April referral of Lerner for criminal prosecution. It’s unclear what the Justice Department will do with the House accusations, as the agency’s policies bar agents from discussing ongoing investigations.


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Affordable Care Act’s own words should be its undoing

By Las Vegas Review – Journal
The Democrats who forced the Affordable Care Act on the American public are predictably outraged that Obamacare appears headed back before the U.S. Supreme Court for another make-or-break appeal on a pillar of the legislation. But for the Obama administration to prevail once more, the justices will have to follow the president’s lead in ignoring the letter of the law.

The latest legal challenge to Obamacare addresses the health insurance subsidies that have propped up the country’s tepid pursuit of coverage mandated by the law. The language of the Affordable Care Act clearly states that subsidies are available only through exchanges “established by a state.” Just 14 states (including Nevada) and the District of Columbia elected to create exchanges, leaving the residents of 36 states to purchase health insurance through the federal exchange.

By law, the federal exchange isn’t supposed to offer subsidies. But the Obama administration provided them anyway. And it’s the only reason the exchange attracted as many customers as it did — of the roughly 5.4 million people who applied for coverage through the federal exchange, about 87 percent received subsidies. Those subsidies averaged nearly $300 per month.

Because health insurance is so much more expensive under Obamacare, thanks to its costly mandates, and because exchange policies come with such high deductibles, very few people can afford to buy coverage without a subsidy. If the subsidy goes away in 36 states, fewer people will buy coverage, reducing insurers’ risk pool and requiring ever higher premiums on an ever shrinking number of policy holders. It would accelerate the law’s death spiral, which already has started because too many older, sick Americans have signed up for coverage and too few younger, healthier people are enrolled to make the costs pencil out.

A week ago today, a panel of the District of Columbia Circuit struck down the subsidies in Halbig v. Burwell, prompting the Justice Department to request a review by the full court. That same day, a panel of the Virginia-based 4th U.S. Circuit Court of Appeals upheld the subsidies in King v. Burwell.

Regardless of how the full D.C. Circuit rules in Halbig v. Burwell, the Supreme Court could accept an expedited appeal of King v. Burwell as soon as this fall. Not only would a decision in that case resolve litigation across the country — federal exchange subsidies are being challenged in other states as well — but it would answer the very important questions of whether billions of dollars are being spent illegally, and whether the language of Obamacare can mean whatever the president wants it to mean.

The administration, Senate Majority Leader Harry Reid and other Democrats claim the challenge is baseless; of course the law’s writers wanted subsidies for all. But the record says otherwise, with two of Obamacare’s architects — Sen. Max Baucus of Montana and economist Jonathan Gruber — saying subsidies would be unavailable through the federal exchange. It fit perfectly with the coercive nature of the law: states that created exchanges would be rewarded, those that didn’t would be punished.

For more than a year, the president has ignored provisions of Obamacare and unilaterally changed them based on political expediency. Here’s hoping the Supreme Court issues a stern reminder that sometimes laws mean exactly what they say — and that the justices can free the economy from the wet blanket of Obamacare once and for all.



President Obama’s competence problem is worse than it looks

By Chris Cillizza – The Washington Post


You can understand President Obama’s current political problems — and how those problems could make things very tough for his party in this fall’s midterm election — in a single word. And that word is “competence.”

Obama was elected in 2008 on a stated promise that he would restore competence to government. He pitched himself as the antidote to “Heck of a job, Brownie” and the Bush years, the person who would always put the most qualified candidate in every job in his Administration. That the basic functioning of government would never be in question.

Almost six years on from that election, however, Obama is faltering badly on the competence question and, in so doing, badly imperiling not only his ability to enact any sort of second term agenda but also Democrats’ chances this fall. A series of events — from the VA scandal to the ongoing border crisis to the situation in Ukraine to the NSA spying program — have badly undermined the idea that Obama can effectively manage the government.

The latest evidence is a question in a CNN/Opinion Research Corporation poll released Sunday that asks whether the phrase “can manage the government effectively” applies to Obama. Just more than four in ten (42 percent) said that it does while 57 percent said it does not. (It was the lowest that Obama scored on any of the six characteristic questions CNN asked in the survey.)

Obama’s trajectory on the question is all to the bad for Democrats. Back in December 2009, more than three quarters of respondents in a CNN/ORC poll said that Obama was an effective manager of the government. By early November 2009 that number had dropped to 58 percent. It dipped below 50 percent for the first time in June 2010 and in the three polls in which CNN has asked the question since mid-November 2013, 40 percent, 43 percent and now 42 percent, respectively, have said that he is a good manager.

Again, this matters because so much of the Obama brand was premised on the idea that whether or not you agreed with him on issues, you knew he was not going to be George W. Bush when it came to running the government day to day. Increasingly, that is not true in the minds of many Americans.

The numbers on the competence question are even more troubling when you see it through the prism of the 2014 midterm electorate — an electorate that is likely to be whiter and older than the one that re-elected Obama in 2012. Among white voters, 70 percent said that “can manage the government effectively” is not a trait they would ascribe to Obama. Among voters 50 and older, 62 percent say that Obama can’t manage the government effectively. Eighty nine percent of Republicans say Obama isn’t a competent manager while 76 percent of Democrats say he is. Two thirds of independents say that Obama ins’t an effective manager of the government.

What those numbers mean is that if Obama is a major topic of conversation in the most competitive Senate and House races this November, that’s a very bad thing for his party.