The Civil Rights Act of 1964 was a watershed piece of legislation in American history. Based on the 15th Amendment, it outlawed discrimination based on racial, ethnic, religious and gender criteria.
You probably don’t realize it, but it’s likely that you encounter aspects of the Civil Rights Act on a regular basis. When you apply for a job, a mortgage, join a club, stay in a hotel room, or buy something online you are often presented with a page of text with a bunch of legalese that you probably don’t read. That text usually says something about non-discrimination, terms and conditions and various other policies. All of that appears because non-discrimination is the law of the land. That means that if a business or group discriminates based on one of those factors, they could be prosecuted by the government. That text you don’t read basically acknowledges as much.
Although Congress passed the Civil Rights Act, it does not enforce it. That is the President’s job. If someone breaks the rules, the Justice Department or the US Civil Rights Commission will most likely be the one that sues them, not some House or Senate committee. It’s the president’s job to execute the laws. That’s because Article II Section 3 states that the president “shall take Care that the Laws be faithfully executed”.
But what if he didn’t want to do it? Let’s say a president was elected and decided that 50 years was enough and that we didn’t need to focus on discrimination anymore. There would be howls from virtually every quarter of the country. “That’s unconstitutional!”
And of course those howling would be right. Today however, to very few howls, we have the exact same thing, only instead of the Civil Rights Act it’s The Patient Protection and Affordable Care Act, otherwise known as Obamacare.
President Obama has unilaterally decided that large swaths of his signature legislation will simply not be implemented as the law requires. “But he has good reason though…” one might say. Or “He has to, it’s not quite ready”. One could come up with any one of a dozen good reasons for the president to delay the employer mandate or the out-of-pockets caps. It is, after all, the single worst piece of legislation ever to be signed into law in the United States.
The problem however, is that the legislation does not give the President that option. The law doesn’t say the employer mandate, which requires all businesses with over 50 employees to provide health insurance to their staffs or face fines up to $3,000 per employee, can be implemented when the market is ready. It says they will begin in 2014. The law doesn’t say that the cost caps, which limit annual deductibles to $2,000 per individual and $4,000 per family, can go into place when the President is ready to implement them. It says they go into effect in 2014.
But that has not stopped President Obama from delaying both and other aspects of that highly dysfunctional Obamacare, including exempting Congress and its staff from the law… something else the President does not have the power to do.
“So what!” one might say. “The president is saving us from having to operate under a system that is unworkable for another year until he can fix it.” As reasonable as that might sound at first blush, that is a recipe for tyranny. How? Simple. The United Sates is a nation of laws. Congress passes bills (ostensibly) based on its power afforded under the Constitution and the president either signs them into law or vetoes them. Once they are laws, the president has the responsibility to enforce them.
He does not have the right to enforce only those he likes. His role is not to decide what laws – or what aspects of laws – he is willing to enforce. His job is to enforce the laws as they are written. If he does not like pending legislation he has the option of seeking to influence is writing in Congress before it reaches his desk. Once signed, or for a law signed by a predecessor, a president has the option of seeking to change the law via congressional action which will result in a new law replacing or amending the current law.
What he does not have the right to do is unilaterally change the law. If he did, what would stop a president from simply stopping to enforce Civil Rights Act against employers who only discriminate against blacks? What would stop a president from delaying Social Security checks because the IRS hasn’t collected enough in taxes this year? What would stop the president from enforcing the FDA’s testing regime on drug manufacturers? What would stop the president from giving a $1 million tax break to anyone who bundled $500,000 or more to his campaign? The answer to all of these is the same: Nothing.
If the president can pick and choose the laws he will enforce, then the Constitution is simply dead. If he can ignore the responsibilities it demands of him then so too can he ignore the limitations it puts on him. Habeas Corpus? Gone. Term limits? Gone. Freedom of Speech? Gone. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures? Gone. Unrestrained absolute power? Hello!
Obamacare is by any measure, bad legislation. Many people were saying that from the start, long before Nancy Pelosi famously said: "We have to pass the bill so that you can find out what’s in it." Nonetheless the monstrosity that is Obamacare passed into law and the Supreme Court contorted common sense to declare it Constitutional. Nonetheless, in order to protect those responsible for this abomination from voter’s wrath the President has chosen to unlawfully delay some of the most onerous parts of the law. From a political perspective that makes perfect sense. The problem is, it’s simply unlawful. If Barack Obama gets away with this, the presidency is no longer simply first among equals in the Republic formed by our Constitution. It will have literally become a dictatorship. One man choosing what the laws are and to whom they apply. Now that is what I call “Fundamentally transforming the United States”… and not, I would suggest, in a good way.