The

Imperial

Presidency

Recent Examples of the Executive Branch Refusing to Faithfully Execute the Law

ObamaCare

The Affordable Care Act passed by the then Democrat-controlled Congress and signed by President Obama was a 2,000-plus page behemoth that contained hundreds of prescriptive mandates and hard deadlines. Supporters of the law argued that these mandates and sequenced deadlines were critical to make the law function. Since its enactment, the Administration has engaged in a series of ad-hoc announcements that ignore statutory deadlines, waive unwaivable provisions of the law, and even create benefits not authorized in law. The changes have been so numerous and wide-ranging that even the Washington Post was forced to chronicle them in a recent story:


2013

Feb. 7: One-year delay, until 2015, for the start of a Basic Health Program, under which states may hire private health plans to insure some lower-income residents who do not qualify for Medicaid.

April 2: One-year delay, until 2015, for requirement that small-business insurance marketplaces, known as SHOPs, must offer a choice of at least two health plans.

July 2: One-year delay, until 2015, for requirement that employers with at least 50 workers offer insurance to their full-time workers, or pay a penalty.

July 5: One-year delay, until 2015, for federal scrutiny of the income of applicants who, when applying for a federal subsidy, list an amount that differs too much from what they reported on their tax returns.

July 5: One-year delay for requirement that state-run insurance exchanges verify whether people applying for federal subsidies actually qualify for the help — or whether they are ineligible because they could get insurance through a job.

Sept. 26: (Four days before HealthCare.gov, the federal insurance marketplace, opened.) One-month delay, until Nov. 1, for the start of online enrollment in small-business SHOPs.

"Here are 18 major changes the President has unilaterally made to ObamaCare:"

Oct. 23: Six-week delay for the time by which most Americans will be required to have insurance, giving people until March 31, instead of Feb. 15, to buy a health plan and avoid the risk of a government fine.

Nov. 14: President Obama says states may have latitude to let people renew for one more year insurance policies that would otherwise be canceled as of Jan. 1 because they do not include all of the benefits required under the health-care law.

Nov. 21: Six-week delay for the start of the sign-up period to get coverage for 2015, postponing the first day of open enrollment from Oct. 1, 2014, to Nov. 15.

Nov. 22: Extension of deadline to sign up for coverage that takes effect Jan. 1 by eight days, from Dec. 15 to Dec. 23.

Nov. 27: Delays for another year, until November 2014, online enrollment in small-business SHOPs, although small businesses can now get coverage directly from an insurer or an insurance agent or broker.

Dec. 12: Several changes to give consumers more time to pay for the coverage that will start Jan. 1: directing insurers to give people until Dec. 31 to pay their first month's insurance premiums and urging the industry to provide additional flexibility. Also lets states continue through January so-called high-risk pools — special insurance for people with illnesses that have made it difficult for them to get private insurance in the past.

Dec. 19: Policy change that allows consumers who have received notices that their health plans are being canceled because they do not include benefits that will be required as of Jan. 1 two options for 2014: buy catastrophic — that is, bare-bones — insurance or entirely avoid the mandate that most Americans have health insurance.

Dec. 23: Computer system for HealthCare.gov is reset, with no public announcement, to give people one more day to sign up for a health plan in time for coverage to start Jan. 1.

2014

Jan. 14: Second extension of high-risk pools, until mid-March.

Feb. 10: Second delay, until 2016, for requirement that employers with at least 50 workers must offer insurance to their full-time workers, or pay a penalty.

Feb. 27: Policy change to allow consumers to get federal subsidies if they buy health plans outside the new insurance marketplaces, to prevent people from being stranded without coverage because several state-run exchanges are still riddled with technical defects.

March 5: Second extension to give states latitude for two more years to let people renew insurance policies that fail to meet the law's benefits standards, so that consumers may buy such policies until October 2016 and keep them for one year after that.

Immigration Enforcement

  • Non-enforcement of Immigration Laws for Parents and Guardians. On August 23, 2013, the Obama administration issued a policy directive instructing Immigration and Customs Enforcement officials not to enforce immigration laws in cases in which the illegal immigrant is the primary provider for a minor child, regardless of the child's immigration status, or in which the illegal immigrant is the parent or legal guardian of a child who is a U.S. citizen or lawful permanent resident. This is another example of President Obama abusing his authority and unilaterally refusing to enforce the immigration laws by directing officials to stop removing broad categories of unlawful immigrants.
  • Unlawful Extension of Parole in Place. On November 15, 2013, U.S. Citizenship and Immigration Services issued a policy memorandum providing that spouses, children, and parents of those who are serving-or who have previously served—in the Armed Forces of the United States could receive "parole-in-place" on a categorical basis. Notably, the parole statute, the regulations, and the legislative history do not seem to contemplate parole for: (1) aliens who are already in the United States illegally, (2) an entire category of people, or (3) an indefinite period of time. Extending parole in place in this manner is a re-write of the law.

Suspending Criminal Laws

Amending Statutory Mandatory Minimums by Executive Decree. On August 12, 2013, Attorney General Holder announced in a speech to the American Bar Association changes in federal mandatory minimum sentencing policy regarding low-level, non-violent drug offenders. Although Members of Congress may agree with many of the policy issues Attorney General Holder outlined in his announcement, reform regarding mandatory minimums is constitutionally required to come from Congress. But rather than work with Congress to address issues with mandatory minimums, the Obama administration re-wrote federal law by executive fiat.

Recent Judicial Decisions

Nuclear Waste Disposal: The original Imperial Presidency report noted how the Administration was refusing to implement the Nuclear Waste Policy Act. On August 13, 2013, a Federal Court of Appeals found that the Obama Administration was indeed not in compliance with the Nuclear Waste Policy Act and issued a writ of mandamus compelling compliance.

Net Neutrality Rules: The original Imperial Presidency report noted how the Administration's appointees to the FCC were attempting to illegally impose net neutrality rules on the internet. In January 2014, the US Court of Appeals for the DC Circuit decided a case brought by Verizon against the FCC, appealing the FCC's second attempt at imposing net neutrality. Again, the court found that the FCC lacked the authority to apply common carrier rules — those designed for monopoly era telephone networks — on the Internet.

War on Coal: The original Imperial Presidency report detailed a variety of extra-legal steps the Administration was taking as part of its "war on coal." Since then, the EPA took the unprecedented step of unilaterally and retroactively revoking a Clean Water Act (CWA) Section 404 dredge or fill permit that had already been issued by the Corps for a coal mine (the Spruce Mine) in West Virginia, even though EPA was involved throughout the permit application process and the permittee had complied with their permit ever since it was issued three years earlier. The U.S. District Court for the District of Columbia, recently overruled EPA's permit revocation action, ruling that EPA did not have the authority under the CWA to revoke a permit that the Corps had already issued. Not content with the Federal Court's ruling that placed limitations on EPA's authority, the Obama Administration has appealed the court's ruling in hopes of validating their quest for expanded regulatory authority under the CWA. If EPA is allowed to prevail in this action, projects all around the country will be in danger of having their permits revoked any time EPA so chooses.