The King’s Prerogative

English: President Barack Obama's signature on...

English: President Barack Obama’s signature on the health insurance reform bill at the White House, March 23, 2010. The President signed the bill with 22 different pens. (Photo credit: Wikipedia)

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?

 

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About NEO
Lineman, Electrician, Industrial Control technician, Staking Engineer, Inspector, Quality Assurance Manager, Chief Operations Officer

14 Responses to The King’s Prerogative

  1. the unit says:

    “Nothing new under the sun.” Nope. Getting hot, hot, hot.
    Recommend movie for next weekend. Just title fits thread, not politics I guess.
    ‘Duel in the Sun.’ Jennifer Jones. Hot, hot, hot. Warmed this small globule of the world.
    BTW…there is a process by which congress could stop administrative rules and E.O.s. I would guess not one congress critter could explain it. Or desire to. Why make the job difficult?

    Like

    • NEO says:

      Yes, there is, and has been since Magna Charta but, then they’d have to do their jobs.

      Like

      • the unit says:

        Maybe ‘Duel in the Sun’ is what it comes down to after all.

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        • NEO says:

          Maybe, although it might be more in the shadows. 🙂

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        • the unit says:

          Ah…Yep. Duel in the Shadow Government. Box office hit.

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        • NEO says:

          That’s work. Think we can get Whittle to make it?

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        • the unit says:

          I think shadow factions of Clinton (Clinton more hands on) and Obama shadow puppeteer factions (Obama following orders) are on stage right now. What happened though is when all came to a folk in the road…they all took it. 🙂
          Whittle will handle it well.

          Like

        • NEO says:

          Indeed, he always does. 🙂

          Like

  2. the unit says:

    This is just for fun.
    I’m rather subdued today. Not ’cause I’d rather be. Had physical therapy this morning before my first comment…8am. As usual afterwards pain building. Relents in couple of days. Three more sessions to go, will stick with it. Ole coach told me “no pain no gain.” Also don’t want on my government/Zeke Emanuel EMR I was a quitter. This was my first neck stretcher though, thingy jerked and released over and over again. Tech gave me a button to push in case something went wrong. I wouldn’t push though, afraid it might set it off and jerk my head off (didn’t want to give it more traction, aka pop the clutch so to speak).
    I’ll finish the course and then give myself a few weeks to heal and see how I feel. 🙂

    Like

    • NEO says:

      Hope it works out. I would have been surprised if you quit, that wasn’t built into us! 🙂

      Like

      • the unit says:

        It will work out. Movin’ West. My bathroom is west of my bedroom. 🙂

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        • NEO says:

          Hope everything comes out OK, My friend! 😀

          Like

  3. the unit says:

    I think you’re right. Differing opinions by differing courts. What “they meant” will be determined by the Supreme Court. Not what words say so much, as to what they meant it to say when it doesn’t jive with ends intended. John Marshall said paraphrasing probably or maybe exactly…”the law says what we say it does.”

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    • NEO says:

      I don’t know if it was Marshal but, that’s what it amounts to now.

      Like

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