NEW YORK – Whatever the investigation into misconduct at the Internal Revenue Service reveals, we already have all the evidence we need to understand President Barack Obama’s fundamental attitude toward the rule of law. That evidence is right there in the public record, and what it shows is indifference and contempt.
The U.S. Constitution gives the president the power to appoint officials to fill vacancies when the Senate isn’t in session. In 2012, Obama made such “recess appointments” to the National Labor Relations Board and the Consumer Financial Protection Bureau — even though the Senate had stayed in session precisely to keep him from doing so.
Obama’s lawyers argued that the Senate wasn’t really in session even though it claimed to be: It was going through the motions to block Obama, but it wasn’t taking up bills or nominations. No previous president had ever tried this maneuver, and an appeals court has just ruled that it was unconstitutional.
The Patient Protection and Affordable Care Act, the sweeping health care law that Obama signed in 2010, asks state governments to set up health exchanges, and authorizes the federal government to provide tax credits to people who use those exchanges to get insurance. But most states have refused to establish the online marketplaces, and both the tax credits and many of the law’s penalties can’t go into effect until the states act.
Obama’s IRS has decided it’s going to apply the tax credits and penalties in states that refuse, even without statutory authorization. During the recent scandal over the IRS’s harassment of conservative groups, many Republicans have warned that the IRS can’t be trusted with the new powers that the health law will give the agency. They are wrong about the verb tense: It has already abused those powers.
Another provision of the health law authorized the secretary of Health and Human Services, Kathleen Sebelius, to require employers to cover preventive services in their insurance policies. She decided that almost all employers would have to cover contraception, sterilization and possibly abortion-causing drugs, such as Ella, whether or not the employers objected on religious grounds.
That edict flew in the face of the Religious Freedom Restoration Act, which stipulated that the government can override religious conscience only when it is the least restrictive means of furthering a compelling interest. Republican senators had warned Sebelius of this issue before she imposed the rule. She has admitted that even after their letter, her department imposed it without either requesting a legal analysis from the Justice Department or producing its own memo. Most judges who have ruled on this issue, including some Democratic appointees, have found that the regulation does violate the law.
Last summer, Obama directed immigration agencies not to deport some illegal immigrants who were brought to America as children, and to give them work-authorization permits.
In effect, he implemented much of the DREAM Act that Congress has long debated, but never enacted. Defenders of this action said he was merely prioritizing scarce law-enforcement resources, but that excuse won’t wash: It would mean that a future Republican president could announce, for example, that he isn’t going to burden the bureaucracy with collecting capital-gains taxes.
Even if Obama were right about these policies — and I’m sympathetic to the goal of the DREAM Act — he went about them the wrong way, disregarding laws he swore to execute. Complaints about Republican obstructionism are no excuse. Even if the Republicans are behaving badly, they have at least acted lawfully in opposing the president.
Obama is not, of course, the first president to flout the law. His supporters will surely respond to this litany by repeating the charge that President George W. Bush “shredded” the constitution. The Bush administration claimed that the constitution gave the president powers as commander-in-chief, trumping laws that tried to restrict his ability to protect national security. It was a debatable, but not frivolous, argument.
Obama is making no similar constitutional claim, and his defiance of constraints on his power isn’t confined to one area of policy. Again and again, he has imposed liberal policy preferences rather than follow the law.
In 2011, Obama was asked why he hadn’t imposed the DREAM Act unilaterally. “America is a nation of laws, which means I, as the president, am obligated to enforce the law,” he responded. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” That Obama was right.
The president’s routine violation of the law that he is supposed to uphold isn’t covered in the media as a scandal. It ought to be.
Ramesh Ponnuru is a Bloomberg View columnist and a senior editor at National Review. The opinions expressed here are his own.