I have previously talked about President Obama’s willingness to ignore democratic (small “d”) procedures. (See here, here and here.) The most recent example is the President’s suspension of the employer mandate in the Affordable Care Act. Even when he was directly asked, he wouldn’t give the legal basis for his decision to not enforce it; he just isn’t going to do it.*
However, an article in The Washington Post in the middle of August reported on what may be President Obama’s biggest evasion of the Constitution yet:
“President Obama liked the idea laid out in a memo from his staff: an ambitious plan to expand high-speed Internet access in schools that would allow students to use digital notebooks and teachers to customize lessons like never before. Better yet, the president would not need Congress to approve it. …
There’s just one catch: The effort would cost billions of dollars, and Obama wants to pay for it by raising fees for mobile-phone users. Doing that relies on the Federal Communications Commission, an independent agency that has the power to approve or reject the plan.”
There’s actually another catch: the Constitution. The things I talked about in the posts listed above mostly involved administrative actions. With respect to cap-and-trade, the Environmental Protection Agency issued regulations even though Congress refused to pass a law to do the same thing. No Child Left Behind rules were ignored through administrative waivers, instead of getting Congress to change them. And provisions of the DREAM Act, which Congress wouldn’t pass, are being put in place by prosecutorial discretion. But this new idea goes further.
With this proposal, the Administration would not only initiate a program without Congressional approval, they would raise the taxes to pay for it without Congressional approval. (A government fee on your cellphone bill is certainly a tax; I think Chief Justice Roberts would agree.)
Recently, I have been listening to two Teaching Company programs on English history.** One of the points the lectures emphasized was the role that taxation played in the development of the English Parliament. The English kings were poor and often needed money, but to raise taxes they needed the approval of Parliament. To get that approval, the kings would have to make concessions to Parliament. As the kings continued to ask for money, Parliament increased in power.
We now see our “king,” President Obama, figuring out a way to raise the taxes for his programs without the approval of “parliament,” Congress. This is not the way our system is supposed to work. Harold Furchtgott-Roth, a Republican former FCC commissioner, put it this way:
“Using the FCC as a way to get around Congress to spend money that Congress doesn’t have the political will to spend – I think that’s very scary. Constitutionally, it’s Congress that decides how federal funds should be spent.”
Actually, Mr. Furchgott-Roth understates the issue. It’s not only Congress who decides how federal money is to be spent. It is Congress which needs to approve the taxes to raise the money.
I understand President Obama is frustrated with Congress, but that doesn’t give him the right to ignore the Constitution. The ends do not justify the means. When Benjamin Franklin left the Constitutional Convention in Philadelphia in 1787, he famously responded, to a woman who asked what kind of government we were to have, a republic or a monarchy, “A republic if you can keep it.” That still holds true today. We have a republic – “if we can keep it.” And keeping the republic means following the Constitution and following the procedures and processes set forth in it – even if we don’t like the results.
President Obama has evaded the Constitution before. Raising taxes without Congressional approval would be the biggest evasion yet.
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* President Obama did give a basis for his actions; it just wasn’t a legal basis. The basis he gave was the abnormal political atmosphere in Washington. Here is what the President said:
“[I]n a normal political environment, it would have been easier for me to simply call up the Speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law … let's make a technical change to the law. That would be the normal thing that I would prefer to do.
But we're not in a normal atmosphere around here when it comes to ‘Obamacare.’”
The only problem with the President’s explanation is that the House of Representatives did pass a bill authorizing the delay of the employer mandate by one year. The Senate, however, did not consider it, and the President threatened to veto it. (Here.) Why? Perhaps because the House also passed a bill delaying the individual mandate by one year, and maybe Democrats did not like the politics of voting for a delay in the employer mandate while not voting for a similar delay in the individual mandate.
** The two courses were “Story of Medieval England: From King Arthur to the Tudor Conquest” and “History of England from the Tudors to the Stuarts.” You can find them at The Teaching Company’s website here. They are both good. The second is fantastic.
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