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Now Obama really is bypassing Congress

I downplayed constitutional arguments against President Obama’s “bypass” of Congress that he trumpeted in the State of the Union address. But the new suspension of parts of the employer mandate represent a much more aggressive and constitutionally dubious exercise of executive power than those minimum wage measures. The difference between the State of the Union’s minimum wage initiative and the employer mandate is what F.A. Hayek called the difference between orders and laws. The federal contractor rules were about the operations of the federal government – top-down directives to administration officials. The current measure is a large-scale selective rewriting of the obligations and burdens places on private parties, a classic legislative function.

Manipulating large-scale legislative policies, duly enacted, around election schedules goes beyond the parameters of executive discretion. Nor can this be justified by the dubious claim of “transition relief” from tax obligations. The employers are not being relieved just from taxes, but from direct primary legal obligations to provide insurance.

Every year the administration delays large portions of ObamaCare, it says it is no big deal, because it is “temporary.” But a few temporary fixes in a row becomes a new permanent form of executive lawmaking.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.



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