To remove all doubt: The Take Care Clause of the Constitution absolutely forbids any president from doing exactly what Obama did Thursday.
Obama said he would allow insurance companies to keep offering previously-offered insurance plans that Americans would like to keep. Nobody knows if this means all plans, or only some of them, and how the White House will make such determinations. He says he has “enforcement discretion” to make this change to the Affordable Care Act unilaterally, without consulting Congress.
This is a frightening claim of a sweeping power that is completely inconsistent with the Constitution. A president has “prosecutorial discretion” to prioritize which lawbreakers to prosecute in federal court, but there is no “enforcement discretion” to determine which laws on the books he will enforce.
Article II, Section 3 of the U.S. Constitution commands of every president: “he shall take Care that the Laws be faithfully executed.” Like every provision in the Constitution, it has a legal meaning—and that meaning is the Supreme Law of the Land, which Congress, the courts, and—yes—each president is bound by his oath of office to follow carefully.
Everyone should know from their high-school government classes that Article I of the Constitution gives Congress exclusive power to make federal laws, and Article II of the Constitution gives the American president the executive power to administer and enforce those laws. Article II then includes the language about how the president must faithfully execute those laws.
Among other things, the Take Care Clause was inserted in the Constitution to abolish the Royal Prerogative that the Framers of the American Constitution knew from their lives as Englishmen. It was the power of the king of England to disregard or effectively suspend Acts of Parliament. The king could not make laws, but he could shelve a law that Parliament had passed.
Obama’s announcement is a flagrant and undeniable violation of his constitutional duty under the Take Care Clause. The provisions of Obamacare causing enormous trouble for insurance plans are mandatory, and only Congress can change those parts of the Affordable Care Act. Every day provides additional proof that Obamacare is a complete train wreck, but it is one regarding which only Congress can change the terms.
This president’s relationship to Congress is reaching toxic levels, due in large part to the regularity of his hyper-partisan rhetoric and ongoing disrespect. He is learning that the campaign tactics that enabled him to win two presidential elections are manifestly counterproductive when applied to the arduous task of governing, especially in a country as large and diverse as America.
It is not clear at this point whether anyone would have standing to sue over this matter in court. If the experts who are saying today that this unilateral move will only make matters worse are correct, someone might suffer an individualized injury that they could litigate.
President Obama should hope that doesn’t happen, because if a federal court can get past the procedural hurtles to reach the merits of the case, it’s an open-and-shut case that this president’s actions are unconstitutional—again.