Obama's Unilateral Actions Go Too Far
By Sean Evans, Chair and Professor of Political Science
Feb 17, 2014 -
In his State of the Union, President Obama said that if Congress did not act, he would use his pen and phone and act. Last Monday, the Obama Administration acted by delaying the health care mandate on employers.
Obama’s unilateral action follows a rich tradition of presidents pushing the constitutional boundaries to expand their power. The first president, George Washington, started this with his claim of executive privilege to protect his correspondence with executive officials concerning the Jay Treaty. Every president since has used crises, their role as the only nationally elected politician, and statutory laws to increase presidential power.
Furthermore, the president’s propensity to “go-it-alone” has increased, regardless of party, since divided government became more common as presidents act unilaterally to rally public support, preempt sweeping change they oppose, and advance policies Congress will not approve.
However, there are limits to presidential power and some of President Obama’s recent actions go too far.
First, Obama has effectively rewritten the Affordable Care Act (ACA) and No Child Left Behind (NCLB) without Congressional consent. For the ACA, the Administration ignores mandatory deadlines for implementing the program and disregards the requirement that subsidies to purchase health insurance only go to people in states that create their own exchanges. For NCLB, the Administration waives its requirements if states accept education reforms the Administration supports.
However, the separation of powers is not an inconvenience but a constitutional requirement. The Founders intentionally created a system of shared power and responsibility to prevent one branch from acting unilaterally and to force compromise. So if the president does not like a law, he must follow the constitutional process to change it. Yes, his opponents will require him to change a law that is his legacy but that is the price of constitutional government.
Second, the Administration’s waiving of eighteen provisions of the ACA seem arbitrary. Why do those “who want to keep their insurance if they like it” get relief but not those who did not have insurance previously? Why do medium size businesses get a two year delay in the employer mandate but not large businesses? Why must large businesses provide 70% of employees health insurance instead of the mandated 95%?
While the Obama Administration claims it makes waiver decisions to provide flexibility, the real reason seems to be politics. Unions complain about the reinsurance fee and get an exemption. Businesses complain about the employer mandate and get a delay. The president makes a promise he knows he can’t keep and extends a catastrophic insurance waiver to those whose insurance was cancelled.
The overarching purpose of the delays seems designed to minimize the political fallout to protect the Senate Democratic majority and increase the odds of the ACA surviving his presidency.
However, fairness and the rule of law demands that the law apply equally to everyone – even when implementation is politically problematic.
Unfortunately, people view this controversy through partisan lenses. However, one way to avoid partisan disagreement is to use the “what’s good for the goose, is good for the gander” rule. Would Democrats object if a Republican president in 2017 waived the ACA because of the difficulty of implementation? If so, Obama’s waivers are wrong today.
The ACA is the law of the land, as Obama repeatedly tells Republicans. Therefore, he should follow it.