Democrats should be wary of the argument that President Obama can unilaterally delay the employer mandate. If this is so, there is of course nothing to prevent a President Chris Christie or a President Scott Walker from delaying the individual mandate or any other provision of the law (e.g. the medical-device tax, the operation of the exchanges). Democrats are desperate to defend a president struggling to hold his prized legislation together with chewing gum and duct tape.
The effort strains credulity, as was in evidence on Fox News Sunday when Chris Wallace asked Democratic congressman Xavier Becerra (Calif.) “What gives [Obama] the authority to rewrite what seems to be a very clear law?”:
BECERRA: Chris, it’s the same authority that every president has had, to make sure that the laws are administered and executed in a way that helps all Americans. The president simply providing small businesses with a flexibility they need to be able to start adopting the law. . . . Small businesses support the flexibility and the president is making sure that we implement this in a way that puts into effect the purpose of the law, which is to give people more health security. So if this were against the Constitution, someone would have sued by now and the president would have had to stop. The reality is the president has used his executive powers less often than almost every president before him. . . .
WALLACE: In fact, Article 1, Section 1 of the Constitution gives Congress all legislative powers. Forget the politics for a moment, Congressman Becerra. I would think as the congressman you would be upset at the idea of any president, and you’re right, there are other presidents of the other party who have done it. Any president going around Congress to this extent.
BECERRA: If you were going around Congress to rewrite law that would be different than trying to use the flexibility you’re given by the Congress to execute the law. The president is not trying to rewrite. The president has never said I’m going to go it alone. The president said I’m going to work with Congress. But where Congress decides not to act, remember, this is perhaps the greatest do nothing Congress we’ve seen. You have a Republican speaker who said he will not — he will be the brick wall.
WALLACE: But the law says . . .
BECERRA: That will not permit the president’s tax.
WALLACE: When the law says, the health care law the employer mandate shall begin after December 31, 2013, isn’t that pretty specific?
BECERRA: It will begin after December 2013. The president . . .
BECERRA: Well the president said we’ll start it after 2013, but we’re going to make sure it works well for small businesses. And the fact that — what he’s trying to do is make things work. When Congress can’t pass bills, when Congress shuts down the government, the president can’t just sit there. What he is saying is I won’t wait.
WALLACE: That is the way the Constitution is written. The president is supposed to just sit there?
BECERRA: No, he is just supposed to sit there? If we have an emergency, the president is just supposed to sit there?
WALLACE: An emergency with Obamacare?
BECERRA: But you never know if something might happen if we just start to talk about a foreign threat here, sir.
I would hope that we would never have a chief executive who would twiddle his thumbs because Congress can’t get it acts together.
BECERRA: We need to move. We need to move.
I bet he’d like to move on, but he no doubt will find this argument repugnant when the other party is in the White House. If Dems were smart they’d move to concretize in law the changes the president has made. But that, of course, would open the process up to amendments and compromises — exactly as the Constitution envisions the legislative process working. The Constitution does not have a Section 2 power for the president to ignore Congress when it won’t do his bidding or when a midterm is coming up. The president’s gross lawlessness sets a dangerous precedent Democrats will, I suspect, regret.