July 29, 2014 14 Comments
We have talked several times about the rise of administrative law and it’s almost exact similarity with the King’s Prerogative. You can find those articles here, here, here, and one here at Jess’, nearly all of those articles also have links, if you’re interested.
Today we are going to speak of how the Obama administration and its Democratic sycophants are defending it. In the Affordable Care Act (ACA, Obamacare, and other less complimentary names), it states clearly and unequivocally, that to receive a subsidy one must purchase through an exchange established by a State.
In fact that was one of the major inducements included to try to force the states to establish exchanges. A majority of the states, being more attuned to the people than Washington is, refused. And the matter came to the DC court last week, which ruled that the words meant what the words said. That was what the Democrats had campaigned on back in the effort to pass the law, but now, they find it most inconvenient, since it means that many Americans will have to pay the full price of the overpriced, not very good insurance available on the exchanges.
So now, not understanding apparently, that we were listening (and that You-Tube exists) they are now saying that what they meant was an exchange established by a state or by the administrative bureaucracy of the federal government. Most of the administration, legislature and judicial officials owing loyalty to the Democratic party are supporting this nonsense, and some courts will no doubt rule accordingly. And so we are likely to end up at the Supreme Court again.
On Sunday Angelo M Codevilla wrote on the Library of Law and Liberty on this. Here is a bit of it.
[...]America has moved away from the rule of law in recent decades, as more and more of the decisions by which we must live are made by administrative agencies in consultation with their favorite constituencies and judges rather than by the people’s elected representatives. More and more, statutes passed by Congress are lengthy grants of power to administrative agencies, the content of which is determined by complex interactions between bureaucrats, special interests, and judges aligned with either. Hence House Minority Leader Nancy Pelosi’s famous statement—that the ACA’s meaning would be determined only after its passage—was true of it and most other modern legislation as well. This is the rule of men, not of law.
But the transition away from the rule of law has been masked by the (ever thinner) fiction that the administrators are merely filling in the interstices of laws. Were they to prevail, the administration’s arguments for casting aside the ACA’s explicit provision because it conflicts with its will and its clients’ convenience would mark the dropping of the mask. America’s transition from the rule of law to the rule of the sovereign, largely accomplished some time ago de facto,would now be fulfilled de jure. Openly, this President and his partisans would have trumped law by will. Thereafter, continuing to pretend that America lives by law would be a mockery.
The importance of this is difficult to exaggerate. The nation’s slide into something foreign to its past would accelerate.
Barack Obama is not the last President America will ever have. Sooner or later, someone will come into the presidency representing a majority of Americans who—rightly or wrongly—may be aggrieved by what they feel are measures that the previous administration and its partners have shoved down their throats. They may be eager to engage in retaliatory activity with lots of compound interest. The administrative machinery, the legal arguments, and the political precedents would be ready for them.[...]
You really need to read it all
This morning Robert Tracinski also wrote on The Federalist on this. He shows that this type of legislating is what we increasingly do. Here’s a bit of that:
[...]But the big question is: why do they think they can get away with this? Why do they think they can write something into the law, go around for a couple of years explaining that provision to audiences, and then pretend later that it wasn’t there at all and it’s patently ridiculous for anyone to think it ever was?
Partly this a measure of crass partisanship, and partly it’s a measure of desperation. Without the subsidies, what happens to ObamaCare? And without ObamaCare, what does their messiah have to show for his presidency?
But this also fits into a larger context. They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.[...]
Again, you should read his entire article
But the main takeaways here are that the legislative authority in our system is vested in the Congress, and only the Congress. One of the results of this mispractice is that Congress can evade their responsibility for what the legislation says, and simply blame HHS or EPA or whatever bureaucracy is concerned. That is not what the Founder’s intended. The bureaucracy (and the executive generally) were established to enforce the laws the Congress passed, essentially without comment, although it wouldn’t do any harm if the Legislative and Executive branches were to occasionally remember that they also have sworn to uphold the Constitution.
In truth this practice is not measurably different that The Statute of Proclamations (1539) that allowed Henry VIII to rule as a despot. This allowed the King to issue proclamations which had the force of an Act of Parliament.This essentially did away with the need for Parliament. And that is pretty much what we are seeing with Obama’s reliance on his “pen and a phone”. I should note that very soon after Henry’s death that Act of Proclamations was repealed, although all the way to 1689 English Monarchs kept trying personal rule under various guises.
This was one of the abuses that the Constitution was specifically written to prohibit. We’ve let it sneak back in, in the guise of administrative law.
Nothing new under the sun is there?