A conservative President will have a constitutional duty to “nullify” the individual mandate
God willing, Barack Obama will be replaced with a President who recognizes the individual mandate, a key component of Obamacare. It will be not the right, but the duty of the new President to exercise his constitutional powers to effectively nullify the “individual mandate.”
The President, like all state and federal officials, pursuant to Article VI, takes an oath under the Constitution to uphold the Constitution, and, pursuant to Article II takes a specific oath, constitutionally prescribed for his office alone, to “preserve, protect, and defend the Constitution of the United States.” Moreover, he is specifically obliged to ensure that the laws are faithfully executed.
Faced with a law that he believes to be unconstitutional, what is the President to do? Simply acquiesce in whatever the courts might say, and enforce a law that he knows to be unconstitutional? Our current judicial-centric understanding is not how the Founders saw things. Even if the courts endorsed a congressional law, if the President believes to be unconstitutional, he will have a duty to treat the law as void in the exercise of his powers.
Jefferson believed as much, and pardoned anyone convicted under the Alien and Sedition Act:
“You [Mrs. Abigail Adams] seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution.”
So, come January 2013, what must the President do? Pardon anyone convicted for failing to pay the unconstitutional fine; announce a moratorium on any future prosecutions; and announce that he will pardon anyone against whom prosecutions might be initiated during his term of office.
In addition, the President must veto any appropriation for funds that he can, and issue an executive order declining to spend money on unconstitutional programs.
Of course, that might prompt a dispute with a liberal judiciary. But that is a fight the President can win–and a fight that he is compelled to face under his DUTY to preserve, protect, and defend the Constitution.
What I am writing here may sound controversial–and I am prepared to defend these propositions against any challengers. I think they are entirely consistent with the Founders’ Constitution–and with the reasoning of Marbury v. Madison.