Almost every time I write in this space to complain about President Obama’s unconstitutional changes to his signature legislative achievement, Obamacare, I get notices of readers unsubscribing from my column, which is their right, but I presume they do so because they disagree with my contention, or disagree with my politics (so ignore my Thinking Out Loud columns and just read my non-political history column).
But in this case, it isn’t a matter of politics, and my contention is based on decades studying the constitutional law-making process. We are, proudly, “a nation of laws, not of men,” and the Constitution is very clear on how laws are made.
The Constitution (Article I, Sec. 1) gives the legislative branch, our Congress, the sole power to create or amend laws, but to do so both branches of Congress must separately pass the same legislation. Understanding that the legislative branch is the government’s most important branch — it writes the laws — the Founders divided Congress into a House of Representatives and a Senate, and each branch has different priorities. The idea was to ensure that all laws reflect the wishes of the people as a whole, but also reflect what is in the national interest — which are not always the same thing. In the House, members serve just two years and are popularly elected, so they are most beholden to the will of the people, and their legislative priorities reflect that will. But Senators serve six-year terms, so they have more political immunity from the people’s will, and therefore can consider in a more impartial way whether legislation reflecting the people’s will is also good for the nation as a whole. This important difference is why lawmaking is usually an arduous process in which both branches debate and compromise until finally arriving at a consensus bill both side can live with (if not always love).
At which point (Article I, Sec. 7) that legislation is sent to the executive branch, where the chief executive, our president, has two choices: Veto the law and send it back to Congress with a written explanation as to why he vetoed it, or sign it into law.
If he signs it into law, then the Constitution (Article II, Sec. 3) explicitly instructs him to “take Care that the laws be faithfully executed.”
Note the modifier “faithfully,” which was deliberately included because the Founders worried that presidents might not always “execute” — enforce — laws, or even sections of laws, they didn’t like. “Faithfully” means they must always enforce the law, like it or not.
This is my non-partisan, apolitical problem with President Obama’s repeated violations of the Constitution’s clear language on making, and changing, laws. He seems to think the Constitution doesn’t matter.