Rosenkranz on the “Take Care” Clause and Obamacare, Immigration, and IRS Targeting

December 4th, 2013

Here is Nick’s testimony from his appearance before the House Committee on the Judiciary. I’ll include some highlights:

On Obamacare.

As for Republican congressmen who questioned his authority, Mr. Obama said only: “I’m not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers.”12 Mr. Obama made no mention of, for example, Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who asked exactly the right question: “This was the law. How can they change the law?”13 Senator Harkin’s point, of course, is that a change like this is inherently legislative; it requires an amendment to the statute itself.

But the President has been distinctly ambivalent about any such amendment. A few months ago, he said that he would like to “simply call up the Speaker” of the House to request a “change to the law” that would achieve his desired delay.14 But the truth, as the President knows, is that he wouldn’t even need to pick up the phone: On July 17, 2013, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor).15 This would have authorized President Obama’s desired suspension of the law. 16

But President Obama did not actually welcome this congressional ratification. To the contrary, this bill—which stood to fix the constitutional problem that he himself had created—the President deemed “unnecessary”. 17 Indeed, he actually threatened to veto it.18 In this case, it appeared that the President would actually prefer to flout the law as written, rather than support a statutory change that would achieve his desired result. This seems an almost willful violation of the Take Care Clause.

On the DREAM Act and DACA:

The second example, immigration, is almost an exact mirror of the first. In the ObamaCare context, the President suspended an Act of Congress—a statute that was duly passed by both Houses of Congress, and which he himself had signed into law. In the immigration context, the situation is the opposite. Rather than declining to comply with a duly enacted statute, the President is complying meticulously—with a bill that never became a law. Congress has repeatedly considered a statute called the DREAM Act, which would exempt a broad category of aliens from the Immigration and Nationality Act (INA). 19 The President favored this Act, but Congress repeatedly declined to pass it.20 So, on June 15, 2012, the President announced that he would simply not enforce the INA against the precise category of aliens described in the DREAM Act. 21 He announced, in effect, that he would behave as though the DREAM Act had been enacted into law, though it had not.22 Once again, the President does have broad prosecutorial discretion and broad discretion to husband executive resources. But in this case, it is quite clear that the President is not merely trying to conserve resources. After all, his Solicitor General recently went to the Supreme Court to forbid Arizona from helping to enforce the INA.23 And exempting as many as 1.76 million people from the immigration laws goes far beyond any traditional conception of prosecutorial discretion.24 More to the point, this exemption has a distinctly legislative character

Nick also cited the heckler, and the President’s “eloquent” response.

Mike Cannon offers a handy list of all of the President’s executive peccadilloes with Obamacare:

  •  Diverting Prevention Funds to Federal Exchanges,
  • Illegal Subsidies to Members of Congress,
  • Spending Billions That the PPACA Expressly Forbids the President to Spend,
  • Unilateral, Blanket Waivers of the PPACA’s Requirements
  • Declining to Collect Taxes the PPACA
  • Imposes Imposing Taxes the PPACA Does Not Authorize