American Elephants

Executive Discretion? Altering and Illuminating Federal Law? by The Elephant's Child

The Progressive assault on the United States Constitution of limited government and divided powers, has succeeded in their creation of the administrative state. In the administrative state, Congressional law-making powers are handed off to executive branch agencies and departments who exercise judicial and legislative powers. This has been going on gradually for some time, as it is easier for Congress to draw the broad outlines of a new law, and rely on bureaucrats to finalize and regulate and dictate and control. That’s how we get these monstrous 20,000 page bills that “we have to pass it so we can find out what is in it.

That’s bad enough, but the President of the United States has accelerated the process and aggravated the phenomenon, by assuming royal or dictatorial powers. Powerline quoted Professor Jean Yarbrough:

We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.

Professor Yarbrough sees the arrival “not [of] soft despotism, but hidden and rather hard despotism for those who fall into the maw of the administrative state.”

We all have a bit of a temptation for totalitarianism— the urge to tell other people what to do, and what they cannot do, which gradually becomes how they must do things and what fines and penalties there will be, and that soon leaves the area of what the people want and becomes what the bureaucrats want, and gets into nitpicky things like telling  you what you should eat, and what kind of light bulbs you may buy, and how they want your appliances improved — there is no end to the improvements.

The foundational idea among progressives is that although people are imperfect and do the wrong things, they can be fixed and improved and forced to do the right things and society will “progress.” Doesn’t work. But progressives are quite sure that this time will be different.

Obama, as a senator, was outraged by President Bush’s executive orders. When he was inaugurated, the first thing he wanted to do was to end every single one of Bush’s executive orders. High on the list was the ban on embryonic stem cell treatment—which proved that the stupid Republicans were “anti-science,” except that Bush was right and embryonic stem cell treatment has gone nowhere. However, that seems to be where all the executive ordering started, and he thought it was fun and has continued even unto today.

Obama has decided that the hundreds of thousands of people whose health policies are being canceled because their coverage does not meet the ObamaCare rules will be exempt next year from the U.S. mandate that all Americans carry medical insurance. People who are losing their coverage will now be allowed to buy bare-bones “catastrophic” insurance that the law usually limits to those under age 30, the Centers for Medicare and Medicaid Services said yesterday. Others can opt out completely without the threat of the fines being imposed next year om the uninsured as part of the ‘Affordable Care Act.’

The Presidential Oath says that he will faithfully execute the office of President of the United States, and will to the best of his ability preserve, protect and defend the Constitution of the United States. And over in section 3, it says “he shall take care that the laws be faithfully executed.” Raises some questions about a degree from Harvard Law School. Of course he was also a part-time lecturer in Civil Rights Law at the University of Chicago, which many elevated into a professorship in Constitutional Law, though that was inaccurate. Some said he mostly taught Alinsky’s Rules for Radicals, which may be where he found all the executive orders and “the hidden and rather hard despotism.”

He said Nov. 14 that states could allow plans to extend current policies for a year, but 22 states have said they won’t allow insurers to extend expiring plans.  The insurers have been told to provide more leniency to people by allowing them to pay for plans later in January. And insurers were asked to cover care for any doctor or hospital in January and to cover prescription refills regardless of any network restrictions.

So laws are just made any old way and you can keep amending and revising them until — after the next election. Isn’t that the way it works now?

From George Will:

“To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.”       —U.S. Supreme Court, 1838


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Now keep in mind that all of this is going on at the same time that the First Lady is saying that talking about health insurance should be a Christmas “treat” (and will make your mother feel better), and OFA is trotting out quite possibly the geekiest guy on the planet to suggest that you discuss health insurance during the holidays over a cup of hot chocolate (the guy’s name is Ethan Krupp, who works for OFA, and has shut down his Twitter account and blocked YouTube access to a speech he made at University of Wisconsin – Madison (fun fact: there is a large group of people working on an IT rollout for a local hospital system that are from Madison… several of them know him, and say he is exactly the Obama nerd that he looks like in that ad)).

The problem with the big sales push and PR blitz to “get people talking about health insurance” is that people are ALREADY talking about Obamacare, just not in the way the administration would like. And what these constant delays in the various mandates have shown people is that you don’t have to sign up now… just wait a little bit, and you can get a better deal! (it is quite possible that these are the absolute worst salespeople in the known universe)

What Obama is slowly inching toward is a suspension of the law (which because he wouldn’t agree to a legal suspension of the law through Congress (can’t let those evil Republicans have any credit!), Obama shut down the government) through fiat. I think Obama can forget any further help from the insurance industry… they’ve already told the administration what they can do with most of the proposed last-minute “relief” changes. The PPACA is coming apart right before our eyes, and the person doing the most damage to it is Barack H. Obama, with a very capable assist from Kathleen Sebilius. All that needs to happen now is some federal judge (and then the Supreme Court) rule that the law is to be enforced in its entirety as written, and the Democrats in Washington, DC will almost disappear overnight (specifically, the night of Tuesday, November 4, 2014).


Comment by Lon Mead

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