The Truth About Obama's Executive Orders That Republicans Fail to Explain
President Barack Obama and his supporters tout the fact that he’s issued fewer executive orders than other recent presidents, suggesting Republicans are pushing a non-issue. But Republicans seem incompetent at explaining why the number is irrelevant; the problem is that Obama’s orders are making and breaking the law.
Every president issues executive orders, and commentators only open themselves to ridicule if they suggest there’s anything wrong with those orders as such. Presidents issue them to agencies or employees of the executive branch of the federal government—not the American people—regarding how to carry out specific duties or programs.
The Take Care Clause of the Constitution in Article II commands each president to “take care that the laws be faithfully executed.” So long as he issues orders specifically directing his subordinates on how to administer or enforce some aspect of federal law, he’s fulfilling his constitutional duty.
But two things executive orders cannot do: They cannot make law, and they cannot stop laws from being carried out. This is where Obama is taking what may be unprecedented steps in violation of the Constitution.
For example, refusing to prosecute a class of drug crimes is failing to enforce the law as Congress wrote it. If laws such as the different punishments for powder cocaine versus crack cocaine are unjustified, then it is up to the Congress—the lawmaking branch of government—to decide whether to change that law.
Or voter intimidation. The Black Panthers intimidated white voters in Philadelphia in 2008. The federal government under the Bush administration won a court judgment against some of those responsible. When Obama took over, he ordered the Justice Department to drop the matter by not filing the final papers, even though the case was already won.
Or Obamacare’s employer mandate, which Congress specified in the Affordable Care Act went into effect on Jan. 1, 2014. The impact was going to be politically disastrous for Democrats in the midterm elections, so Obama announced in a speech that the IRS would not enforce that provision of the ACA until 2015.
Those are three of many instances of not enforcing the law; sometimes Obama puts it in a formal executive order, other times not. (For example, he had the employer mandate suspension announced by an assistant treasury secretary in a blog post.)
Even worse, some of Obama’s executive orders actually make substantive public policy. In other words, they actually make new law without Congress.
Obama’s DACA program (not deporting “Dreamers”) is an example. He’s not just failing to enforce immigration law. Instead he’s created a new federal program, designating illegal aliens into four different categories and establishing new criteria for who can indefinitely stay in the United States and who cannot.
Another is Obama’s executive order that organizations who do not support the LGBT agenda under the rubric of “nondiscrimination” cannot receive a business contract with the federal government. As a consequence, if Hobby Lobby or any other business wholly owned and operated by observant Evangelicals, Catholics, Mormons, Orthodox Jews, or even Muslims, denies spousal benefits to same-sex partners, or doesn’t want to bake wedding cakes for gay-marriage receptions, the federal government can refuse to do business with them.
Frankly, even if Congress passed such a law it should be held unconstitutional under the Free Exercise Clause of the First Amendment. The unconstitutional-conditions doctrine provides that no American can be required to forfeit their rights in order to do business with the federal government.
So even Congress cannot do this, but Obama did it anyway.
Or again with Obamacare. Evidently to push back its job-killing effects, Obama has announced that he’s delaying the employer mandate yet again, but only for some businesses.
Congress specified that companies with 50 or more full-time employees are subject to the mandate to offer health insurance. But Obama announced that for 2015 he’ll not enforce it against companies with 50 to 99 employees, but he will enforce it for 100 or more.
That’s essentially making new law. Congress specified that the mandate starts at 50. Obama is essentially rewriting the law by saying it starts at 100. Congress can change that number at any time, but the president can never change it.
Yet Republicans fail to make the simple point: “It makes no difference whether he issues fewer orders than past presidents. They issued orders about how to follow the law, but he’s issuing orders not to follow the law.”
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.