President Obama has created a constitutional crisis by announcing he’ll just enforce whatever parts of the Affordable Care Act he feels like, regardless of how the law is written. Ben Sasse, a U.S. Senate candidate in a crowded GOP primary in Nebraska, latched on to this theme right after Obama’s Thursday health care presser.
His video isn’t exactly the most innovative use of social media in campaign history, and it isn’t going to get Sasse a television contract on FOX News. But it still got over a quarter million views after a number of conservative sites (including, finally, Drudge) linked to the YouTube video. Sasse — the president of a small Lutheran college in Nebraska — thus got his face all over the conservative blogosphere amid an open-seat primary where the candidates are all vying to show who’s the most conservative. (Sasse has the endorsement of the Club for Growth and the Senate Conservatives fund, his chief rival Shane Osborn has FreedomWorks’ backing.)
The reason this worked is that Sasse (whom we interviewed recently) is hitting a note conservatives have been tuned in to for some time. The themes of executive overreach and “government by man” have been consistent ones in Obama’s presidency — given selective immigration enforcement, waivers for education funding, arbitrary (and probably illegal) delays to various other parts of Obamacare, illegal recess appointments, and unauthorized American involvement in Libya’s civil war. It’s a pattern of governmental voluntarism — the federal government behaves exactly as the president wishes it to behave, with checks and balances on his will circumvented with whatever excuse seems appropriate at the time.
Obama is certainly not the first president to adopt such unilateral measures, but he might be the first to act so proud of it (remember the “We Can’t Wait” slogan?) as he did during the 2012 campaign. And he’s arguably done this sort of thing a lot more than his predecessors, despite having explicitly promised that he wasn’t going to be that sort of president.
(Try Greg Sargent here for perhaps the best legal argument that Obama does, in fact, have this authority.)
It’s unclear what Congress will do about the balance of powers issues here. The House has taken a first step by passing its own legislative fix, but that’s unlikely to go anywhere in the Senate. It could also become a moot point if most insurers don’t want to change course, or because many of the states with early deadlines — the ones affected most heavily by ACA-related insurance cancellations — can’t do anything about them even if they want to.
There is another problem as well, although it’s more of a political than of a constitutional nature. To whatever extent it is implemented, Obama’s fix will tend to undermine Obamacare. The fix applies for only one year — and so next year, after new, higher ACA exchange premiums are announced in the spring (a likelihood based on the slow pace of enrollment), a new round of cancellation letters will go out in the fall to anyone who is spared by this.
Either way, conservatives have to think about these deeper constitutional issues going forward, and not just the current political climate. This isn’t just about Obama.
It is likely that Republicans will regain control of the federal government’s elected branches at some point, and when it happens, they need to form a bipartisan consensus (and yes, that’s possible) to increase congressional oversight over the executive, whatever his party. Conservatives in Congress should lead a bipartisan push to trim back executive powers where possible. A few suggestions I made in the last chapter of Gangster Government were to abolish recess appointments and grant primary control of the congressional oversight process to the president’s opposition, no matter which party controls Congress (this is done in the UK and Israel). There are many other possibilities as well that could gain bipartisan support.
In the event that a Republican is our next president, Republicans must not revert to the same tribalism they fell prey to during the Bush years. The temptation will be enormous, after eight years of Obama, to accommodate as powerful a President Christie, Walker, Rubio, Cruz or whoever, as possible. Conservatives need to resist that and think of the bigger picture.