More on Obama lawlessness
The post on Friday regarding Obama’s lawlessness has generated some furious defense of Obama by one commenter, and even more furious pushback by other readers, An increasingly dangerous presidency.
The defense of Obama, that no court has found him to have violated the law, is both wrong and off point.
The problem with Obama is the completely political basis for his decisions whether to honor or ignore the law. For example, if granting a waiver helps him with political allies, he grants it; if not, not.
This is not the rule of law, or the good faith exercise of administrative discretion, it is the use of discretion for political purposes. That in many, but not all, instances he can get away with it because of the separation of powers and the hesitancy of the judiciary to get involved in administrative decisions in no way justifies the conduct.
Lawlessness includes a lack of predictability to enforcement of the law, and that is what we have in this administration.
The prior post was based on Charles Krauthammer’s column on lawlessness of the Obama administration.
Here Krauthammer expands on his point, via RCP:
CHARLES KRAUTHAMMER: I’m talking about how the administration, particularly the president, seems to think that he has right to change duly passed statutes on his own, or to suspend whole parts of laws on his own. I mean, the constitution pretty clear, the president executes the law and the Congress passes the laws. So, for example, a few months ago Obama decided that he wanted to suspend, to postpone the employer mandate of his own law of Obamacare. You’re not allowed to do that. You have got to change the law in Congress if you want to do it. And he did it without hesitation.
A year ago, he did some recess appointments, you are allowed to do it if the Senate isn’t in session. The problem was the Senate was in session, and the courts have so ruled. This is a very cavalier attitude. But the worst part was what happened a couple of weeks ago when the president was really stunned by the fact that there were all these cancellations of insurance policies. So you remember he held a press conference a couple weeks ago, and he told the insurers to reinstate the policies. There is only one problem with that.
The policies were cancelled because under Obama’s own healthcare law it is illegal to issue a policy after the year 2013 unless it contains, these minimal requirements, these 10 elements that it has to have. For example, maternity care and all other stuff. So if you had a policy that was canceled, it’s because it did not satisfactory the minimum
So there is no way that an insurer can reinstate a [plan] because it would be illegal to do it. So obama’s own law is something that he ignores and he encourages insurers and state insurance commissioners to allow it to be violated. And the way he has been doing this, it’s sort of the cavalier attitude that I find absolutely astonishing.
Comments
300 posts in two threads. Minds changed = 0.
Most people who read a blog, don’t post on the blog. People can see who supports their position, and those who use ad hominem as a substitute for argument.
HH, I kind of appreciate Zach writing here. I don’t think they are intending to be rude, albeit they are coming across curt and dogmatic because, I suspect, they are having a bit of a difficult time fully responding given that there’s just one of them.
As long as they don’t really troll, we can welcome the opportunity to counter their arguments in this widely-read forum. I think we should encourage them to lay out their arguments in more detail.
For example, I would like to know the basis for Zach’s conclusion that APA allows for arbitrary enforcement of new laws against some people while excusing others. I would like to know whether they think that this holds for the statutory provisions proper, or just the regulations. I would like to know if they think the answer depends on whether the regulations impact clerical or discretionary functions of the executive, where the distinction is made between new laws and new regs and old law and new regs and new amendments to old laws and old or new regs, and so forth, and where and how that distinction is made, and whether it would vary depending upon what kind of law or what kind of agency. I have many more questions, since my LLM is not in Obamacare, but merely tax law.
Agitation for the sake and refusal to accept others’ arguments is trolling. It takes perverse pleasure in riling up The Enemy and nothing more. It is a waste of time, an assertion time will confirm.
Well, coupla observations….
1. the troll here is useful as a foil
2. his nonsense is useful as material to show your friends and neighbors the “thinking” of Pres. ScamWOW’s bung-sucking myrmidons
3. as someone above noted, he’s working WONDERS for Prof.’s hits!
Henry Hawkins: Agitation for the sake and refusal to accept others’ arguments
We are more than happy to consider opposing arguments. Our purpose is to add to the discussion. Keep in mind that Obama has won a majority twice. Even though you may mark time in the confines of Legal Insurrection, there is a world outside that holds differing opinions.
Henry Hawkins: It takes perverse pleasure in riling up The Enemy and nothing more.
We have no enemies. In any case, if you present an argument concerning the topic, we will consider it.
Thus quoth the junior narcissist, in defense of the indefensible senior narcissist and outlaw, and his outlaw regime.
Pathetic.
janitor: I would like to know the basis for Zach’s conclusion that APA allows for arbitrary enforcement of new laws against some people while excusing others.
The Administrative Procedure Act doesn’t allow for “arbitrary and capricious, or an abuse of discretion”. It does allow for reasonable delays consistent with an orderly transition. Delaying the employer mandate is a reasonable policy based on the problems with the roll-out.
Of course, the courts have the final say, but precedent is that the courts give discretion to the executive. There will be exceptions, and Congress can repeal or carve out an exception from the Administrative Procedure Act any time it chooses.
janitor: I would like to know whether they think that this holds for the statutory provisions proper, or just the regulations.
It applies to the regulatory system, including enforcement of statutory provisions. For instance, if the law requires a new tax be imposed by such and such a date, but the IRS can’t possibly implement the new requirements, then the administration can reasonably delay implementation of the tax. However, if the president delays implementation because he just doesn’t like the tax, then he would be neglecting to faithfully execute the law, and the courts could compel the president.
Zachriel writes: “The Administrative Procedure Act doesn’t allow for “arbitrary and capricious, or an abuse of discretion”. It does allow for reasonable delays consistent with an orderly transition. Delaying the employer mandate is a reasonable policy based on the problems with the roll-out.”
However, Zach, I was not referring merely to delaying the employer mandate. One of the examples I used was the enforcement of the individual mandate (i.e. tax) only against some individuals and not others, based on whether an individual’s insurance company will re-issue him a non-compliant (arguably illegal) insurance policy. You seem to be ignoring these points. To my knowledge, deliberate unequal enforcement of the laws against individuals who currently are similarly situated never has been held by any court to be “reasonable”.
Zach writes regarding ostensible executive discretion under the APA: “It applies to the regulatory system, including enforcement of statutory provisions.”
This response skirts the issue. Regulations cannot be contrary to the black letter provisions of a statute. Moreover, edicts of non-enforcement (against only some persons) by the chief law enforcement officer in the U.S. are not “regulations”.
Zach writes: “If the president delays implementation because he just doesn’t like the tax, then he would be neglecting to faithfully execute the law and the courts could compel the president.”
Such as certain immigration laws he doesn’t like? It is your position, then, that the president simply doesn’t have to do his job of carrying out the law, and this is okay, unless and until the drawn-out process of a plaintiff with standing bringing the matter before a court results in an order compelling the president to do his job?
Seems to me that embodies the essence of “unreasonable”.
janitor: One of the examples I used was the enforcement of the individual mandate (i.e. tax) only against some individuals and not others, based on whether an individual’s insurance company will re-issue him a non-compliant (arguably illegal) insurance policy.
And that seems obviously tailored to minimize disruption in the markets during the transition.
janitor: To my knowledge, deliberate unequal enforcement of the laws against individuals who currently are similarly situated never has been held by any court to be “reasonable”.
They’re not similarly situated. The law has a grandfather clause, and there are conflicting demands.
janitor: Regulations cannot be contrary to the black letter provisions of a statute.
Imposition can be reasonably delayed under the Administrative Procedure Act if it is meant to minimize disruption during the transition.
janitor: Such as certain immigration laws he doesn’t like?
The current administration has substantially increased enforcement of immigration laws.
janitor: It is your position, then, that the president simply doesn’t have to do his job of carrying out the law, and this is okay, unless and until the drawn-out process of a plaintiff with standing bringing the matter before a court results in an order compelling the president to do his job?
That is not our position at all. The president must faithfully execute the law, but Congress has given the president latitude when implementing new regulatory schemes.
“The current administration has substantially increased enforcement of immigration laws.”
Demonstrating there is no lie you will not tell.
Very good, Collectivist.
Ragspierre: Demonstrating …
Deportations by fiscal year. Note the emphasis on deportations of criminals.
http://americasvoiceonline.org/wp-content/uploads/2012/12/deportations-by-year-2.jpg
Border patrol budget by year
http://www.immigrationpolicy.org/sites/default/files/cdn_fig_1.jpg
The president will apparently argue that the administration has met reasonable goals on enforcing current immigration legislation, and that additional security will merely create new obstacles to legalizing the roughly 12 million illegal immigrants thought to be living in the United States. The federal government accelerated deportations in the first years of the Obama presidency, and sent new personnel to patrol the southwestern border.
However, starting last year, the Obama administration declined to enforce existing law regarding the so-called “Dreamers”–immigrants brought illegally to the U.S. as children. The election-year move drew praise from Hispanic groups but preempted congressional legislation, and brought criticism from proponents of immigration reform, including Sen. Marco Rubio (R-FL), who objected to the president’s clear circumvention of Congress.
=========================
Tell you what, coward. Come to Arizona, and walk the border, or Texas.
Or, hell, you could meet some some ICE agents, and tell them how slick Obama is.
If you survive, you can tell us about how Pres. ScamWOW is protecting our territory.
Ragspierre: The federal government accelerated deportations in the first years of the Obama presidency, and sent new personnel to patrol the southwestern border.
That’s right. So the current administration has increased efforts compared to previous administrations.
Ragspierre: However, starting last year, the Obama administration declined to enforce existing law regarding the so-called “Dreamers”–immigrants brought illegally to the U.S. as children.
That’s right. The administration has emphasized deporting criminals rather than innocent children and young adults.
WASHINGTON (AP) — The Homeland Security Department released from its jails more than 2,000 illegal immigrants facing deportation in recent weeks due to looming budget cuts and planned to release 3,000 more during March, the Associated Press has learned.
The newly disclosed figures, cited in internal budget documents reviewed by the AP, are significantly higher than the “few hundred” illegal immigrants the Obama administration acknowledged this week had been released under the budget-savings process.
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Just another example of Barrackades, or Government By Thuggery.
And outlaw behavior against Americans.
“That’s right. So the current administration has increased efforts compared to previous administrations. ”
No, you stupid liar. That was coasting from the Bush years.
Really, is there no lie you will not tell???
http://www.immigrationpolicy.org/sites/default/files/cdn_fig_1.jpg
Ragspierre: However, starting last year, the Obama administration declined to enforce existing law regarding the so-called “Dreamers”–immigrants brought illegally to the U.S. as children.
Zachriel: That’s right. The administration has emphasized deporting criminals rather than innocent children and young adults.
So what you are saying is that the president is breaking the law by selectively enforcing the law.
Ragspierre: So what you are saying is that the president is breaking the law by selectively enforcing the law.
Most people probably think it makes more sense to go after criminals than innocent children and young adults. Whether you agree with this policy or not, the president has discretion on how to allocate scarce law enforcement resources.
Union President Testifies: ICE HQ Ordered Agents Not to Arrest Illegals–Including Fugitives
October 20, 2011 – 4:57 PM
(AP Photo/L.M. Otero)
(CNSNews.com) – Chris Crane, president of a union that represents Immigration and Customs Enforcement officers, testified in the House Judiciary Subcommittee on Immigration last week that ICE agents have been told by ICE headquarters not to arrest illegal aliens who do not have a prior criminal conviction even if they are fugitives who have been ordered deported by an immigration judge or are individuals who have illegally re-entered the United States after being deported and thus have perpetrated a felony.
“Aliens who could not be arrested included but were not limited to ICE fugitives that had been ordered deported by a federal immigration judge as well as aliens who had illegally re-entered the United States after deportation, a federal felony,” Crane, who is also an active-duty ICE agent, told the committee on Oct. 12.
http://4-ps.googleusercontent.com/h/www.thegatewaypundit.com/wp-content/uploads/2013/12/482x555xobama-bus.jpg.pagespeed.ic.1TFFaTqAVO.jpg
See, this is a level of pathology that simply does not belong in a position of power.
Gobsmacking. He’s just like Rosa Parks, except where she refused to be victimized by racism, he embraced racism to take advantage of its benefits. He’s just like J.F. Kennedy, except where Kennedy served to defend and loved his country, Obama declined to serve his country and considers his country to be guilty. He’s just like Abraham Lincoln, except where Lincoln died for his courage in fighting against the barbaric tradition of slavery, he has cynically embraced racism as a vehicle to propel him past unwinnable arguments and the inconvenience of morality.
Obama seeks to legitimize his illegitimate governance by associating himself (illegitimately) with people of courage and principle. He has a bad case of stolen honor syndrome, which is not only despicable, it is a bit creepy.
I find it epically ironic and tragically (or is it pathetically?) fitting that Obama supporters are relying on legal parsings now to save his “signature achievement” as well his so-called presidency.
It is funny. I seem to recall the left going on about “the mere hint of impropriety is unacceptable.”and ” the seriousness of the charge demands an investigation.”.
Standards changed or no standards?
Just another crystalline example of Shaidle’s First Law for understanding the Collective…
“It’s different when we do it.”
Justice Roberts as I see it basically came down to saying . To. Heck with you plebs running everything to the courts . Deal with it yourselves.
Zacko aka OFA. Is basing all Obama actions on the 1946 general delegation of admin minutiae to the executive. If this has no ceiling then this is the problem . The agreement that has largely stood between the English royalty & parliament for 350 years is not set in stone either . However it has been rarely crossed.
You guys just got yourself a Pre Cromwell King. The courts did not save the people either . I seem to recall they had to either exile or behead kings & usually a civil war to top it off.
Enjoy.
Ragspierre: “sun setting”
And as the sun set each day and the shadows grew long, the shrewds and incompetents twisted their claws and hooves to make shadow puppets for the benefit of the gullible tourists driving by. The silhouettes of magical unicorns and jackalopes changed the atmosphere to a hopeful one, and the park was dubbed “The Land of Hope & Change.”
A young and skeptical yet dapper young man named Ragspierre was driving through the park at dusk one day as the silhouettes started their show.
Rags was thirsty, and he wanted to kick himself for not stopping at that roadside Kool-Aid stand outside the entrance of the park. His thirst only exacerbated the aggravation he felt at the amateurish shadow puppet show and he wondered aloud how anyone could fall for such silliness.
But something off in the bush caught his eye. He parked and left his van (“the RagShagMobile”) and, carrying his video camera, walked over to investigate.
2 Hours later a visibly shaken Rags, breathing hard, rushes into the park ranger station.
Rags: Excuse me, are you a park ranger here?
Park Ranger Zachriel: Yes, we are.
Rags: I just spotted a Benghazi Tiger.
Zach: No, no, no. You mean a Bengal Tiger. It must’ve been a Bengal Tiger.
Rags: You have Bengal Tigers here?
Zach: No, we don’t.
Rags: What? Umm, anyway, I definitely saw a Benghazi Tiger. I have evidence. I have video.
Zach: Hahaha! … Video … haha … Benghazi …haha … evidence … hahahahaha! You have nothing. And if you don’t stop this nonsense we’ll have to arrest you.
Rags: What?! On what charge?
Zach: Resisting discretion. What difference does it make?!?! We’ll close the park first before we book you. Would you mind helping us with these barricades? If you like, I do have the discretion to put you on cone detail, if you prefer.
Rags: Wh-Wh-What?!?!
Zach: Cone detail. You put orange cones along the highway outside the park so no one can stop and see our Bengal Tigers while we’re closed. Nine-tenths of discretion is punishment.
LukeHandCool (who is considering a career writing children’s books for conservative toddlers about the dangers of progressivism. Tentative series title: “Grim Fairy Tales.”)
‘Health reform is starting to look like a bigger success than even its most ardent advocates expected’
—Paul Krugman, former adviser to Enron
Now that thar is some SERIOUS drugs…
Rags, I suppose that depends on the definition of “success”.
Well executive discretion is a weird thing. So it’s saying that it will not prosecute insurance companies for issuing these policies. And since there isn’t recourse to executive discretion that’s not a problem. But the real problem is that these plans are still illegal and they must cover the minimums. If someone on a hospitalization only plan decides to present their insurance card to a pharmacy then that plan must pay for the drugs. If they want a sex change operation, the plan must pay its part for it. If they don’t, well then they can be sued.
I think you’re correct. Excellent point.
imfine: So it’s saying that it will not prosecute insurance companies for issuing these policies.
Regulations have the force of law.
So they will prosecute them . Good . Eloping forward to this development.
Government allows law breaking , Government prosecutes same lawbreakers.
This isn’t regulation from the law, this is regulation from Executive discretion. Executive discretion only works with executive branch. It won’t protect you from being sued by someone, that’s the judicial branch.
Now the President can’t punish someone who has done this, otherwise it would be entrapment. These are all edge cases, because I think that you run into an area of conspiracy to commit crimes. We would likely need the Supreme Court to weigh in on coordinated law breaking by the President in concert with Private actors, and whether Entrapment protections would apply. Though one could argue that the were being forced to break the law by the executive so this is more like extortion than racketeering. Like I said this is way out there, and should make for interesting case law come jan 1st.
imfine (from above): But the real problem is that these plans are still illegal and they must cover the minimums.
They are not illegal as regulations have the force of law.
ACA is clear on these matters. There are coverage minimums and these plans may not be issued. Any “regulation” that contravenes that law, is not law, nor will it have the force of law. The Executive simply does not have the power you speaks of. All it can do is use executive discretion.
Presidential decrees aren’t regulations.
There are coverage minimums and these plans may not be issued.
imfine: The Executive simply does not have the power you speaks of.
Most of the provisions of essential health benefits are defined by HHS, but some are defined by statute, so the conflict with the grandfather clause is what has caused the current disruption.
The administration does have the power to reasonably delay implementation of the law, and there is ample case law supporting this. The administration can’t delay it indefinitely or “arbitrarily and capriciously”.
There is some uncertainty, because a court could find that the delay is unreasonable. That uncertainty seems to be of some concern to insurers. But it’s not a case of the administration just can’t do it.
janitor: Presidential decrees aren’t regulations.
The rules are promulgated by the appropriate agency.
Right but the ones defined by law are not waiveable for purposes of grandfathering and they’re expensive. We’re not talking about birth control and sex change operations. You know dam well the APA can’t be used to directly contravene a straight ban and my analysis is spot on. There’s no uncertainty in that. When some enterprising citizen demands the plan cover the minimums on a barebones plan, they are not going to be able to say no.
imfine: You know dam well the APA can’t be used to directly contravene a straight ban and my analysis is spot on.
Of course not, but it can be delayed to avoid disruption during the phase-in.
Zachriel, “rules” aren’t “regulations”. Presidential decrees of non-enforcement aren’t “regulations” either. Moreover:
The power to issue regulations is not the power to change the law. US v New England Coal and Coke Company, 318 F.2d 138 (1963).
For any reason.
janitor: The power to issue regulations is not the power to change the law.
That’s correct, and has been discussed several times already. The president must faithfully execute the laws. We’re discussing a delay in implementation under the Administrative Procedure Act.
janitor: US v New England Coal and Coke Company, 318 F.2d 138 (1963).
Which supports are frequent claim that the courts have the power to review such disputes when they occur.
Incorrect. One more time, Zach. Even if, arguendo, Obama had the authority to “delay implementation of the law”, that’s not what he’s doing. He’s presently purporting to excuse some people from abiding by it, while enforcing it against others. That’s “implementing the law” but in an arbitrary and discriminatory fashion.
janitor: He’s presently purporting to excuse some people from abiding by it, while enforcing it against others.
The PPACA itself divvies people up into groups. The administration can certainly phase-in these various groups as long as it fosters implementation of the law.
Just notice this. It needs to be corrected. Zachriel wrote:
The individual mandate under Obamacare was held by the Supreme Court to not be authorized under the Commerce Clause. It is a tax. The president has no authority to not implement this tax in order to meddle with commerce (“the markets”).
janitor: The individual mandate under Obamacare was held by the Supreme Court to not be authorized under the Commerce Clause. It is a tax. The president has no authority to not implement this tax in order to meddle with commerce (“the markets”).
The president doesn’t have the power to ignore law, but when a new law is being implemented, he can reasonably delay provisions per the Administrative Procedure Act.
The case that is testing whether the delay in the employer mandate is compliant under the Administrative Procedure Act is Kawa v. Lew. If you read the complaint, they say the delay is “arbitrary, capricious, and contrary to law”. They didn’t just dream up the language. It’s what they must show under the Administrative Procedure Act.
The courts could very well rule it a violation of the Administrative Procedure Act. Our best guess is that the courts will let the case languish until it resolves itself next year, the theory being that the delay was reasonable because it was temporary. But we certainly could be wrong. We’ll see.
Meanwhile, Liberty University v. Lew was just tossed.
Above, Zach, I clearly said “INDIVIDUAL mandate”, not “employer mandate”.
The business mandate is also a tax.
The president has the same authority with the individual mandate. And because of the problem of implementation, it would be a rather obvious case for delay. It’s difficult to envision the courts imposing a penalty on people who tried to sign up for insurance, but couldn’t because of the administrative problems. That’s why there is an Administrative Procedure Act.
There’s no suit on the individual mandate, as nothing’s happened yet.
The latest edict from yon high was with regard to the individual mandate. Zach, you studiously have avoided responding on this, which is telling.
Meanwhile, Liberty v. Lew may have been declined by the Supreme Court, but that leaves Pruitt and Halbig nicely standing in the pike.
Add note. You write:
You have not addressed the problem that this clearly is not a delay for the benefit of people who “tried to sign up for insurance, but couldn’t”. It’s an edict saying that people whose insurance companies will sell them noncompliant plans are excused, but for everyone else, website issues or no, is still on the hook.
This is an obvious political edict meant to assuage outrage among those whose plans were cancelled, not something to help people who “tried to sign up for insurance, but couldn’t”.
janitor: It’s an edict saying that people whose insurance companies will sell them noncompliant plans are excused, but for everyone else, website issues or no, is still on the hook.
It’s not that difficult to understand. The law includes a grandfather clause, so the distinction is already written into law. The plan is to first get everyone insurance. Then, move people with substandard insurance into insurance with minimal essential coverage. Seems like a reasonable way to implement the bill.
Hey.
Obamacare was designed to fail.
And so it is.
Socialized Medicine will be the next pitch.
Everyone will be freaking out… it will look like a National Emergency… and Obama will come to the rescue.
Guaranteed.
Socialized Medicine is the end-game, and was from the start.
Now that the insurance industry is decimated, and Obamacare is hopeless, and everyone is out in the cold… ( I can’t even buy a plan for money… )
The last remaining option is obvious.
I have to recommend NO PARTICIPATION!!!
Screw them.
Self-proclaimed “clogger:”
http://zachriel.blogspot.com/2005/10/clogging-commenting-on-blogs.html
Clogging
http://www.clogon.com/the-7-most-watched-clogging-dance-videos-on-youtube/