Who Makes Laws, Congress or the President?

How would you like living in a United States where the laws are made by one man. Where laws are made by executive order? This isn’t a mere hypothetical. President Obama has announced that this is how he means to proceed.

On July 30, the U.S. House authorized Speaker John Boehner to sue President Obama over his 2013 decision to “rewrite” the Affordable Care Act  (Obamacare)  to postpone for one year (from Jan. 1, 2014) the employer mandate. The ACA requires that all firms with more than 50 full-time-equivalent employees -- defined as 120 hours per month -- offer government-certified health coverage to their workers, or pay a significant fine.

The president was derisive in his response to the speaker’s suit (whitehouse.gov/photos-and-video/video/2014/07/31/president-signs-fair-pay-and-safe-workplace-executive-order#transcript):

“[L]ast night ...  [t]hey got together in the House of Representatives. The Republicans, and voted to sue me for taking the actions that we are doing to help families.

“One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.

“So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.

“But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.

“The executive order I’ll sign in a few minutes is one that’s good for workers, it’s good for responsible employers, and it’s good for the middle class.

“We need a Congress that’s willing to get things done.  We don’t have that right now.  In the meantime, I’m going to do whatever I can, wherever I can, whenever I can, to keep this country’s promise alive for more and more of the American people.”

So, where in the Constitution is the president granted power to make, amend, suspend the effective date, repeal or refuse to enforce a law? It is one thing to say Congress needs to amend or repeal a law; it is an entirely different thing to say the president should take the law into his own hands.
The Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

If all legislative power is vested in Congress, then Congress alone has power to enact laws and to amend or repeal laws. If all legislative power is vested in Congress, then no legislative power is vested in the president (save the power to suggest legislation and veto bills subject to override).
Governing by executive order “is governing by decree.” Tyrants rule by decree, not American presidents.

Once Congress passes a law the president has no power to amend it, suspend its effective date or repeal it, unless he is specifically granted that power by Congress by law. Indeed, his oath is:  “I do solemnly swear ... that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
His Article II  “Constitutional duty” is to “take care that the laws be faithfully executed;” not to rule by decree for the benefit of the “workers,” for “responsible employers,” or for any class (whether middle, upper or lower).

I have no confidence Speaker Boehner’s lawsuit will succeed. The House has a clear, certain Constitutional remedy short of impeachment to control a lawless president. It controls the purse; it can refuse to fund the president’s alleged illegalities. The fact that the House lacks guts to defund, doesn’t justify its lawsuit. The real victim of presidential lawlessness isn’t the House. It’s the American people. They pay. And only a handful of citizens have the resources, even if indeed they have the standing,  to sue the president. With a feckless House and Senate, President Obama can rule by decree -- as if the Constitution didn’t exist.

So does the President have power to make executive orders? Of course, he does. Since the beginning of the republic, presidents have made executive orders to govern the conduct of officers and employees within the executive department.

President Truman, as commander-in-chief, ordered the end of segregation within our Armed Forces. President Lincoln, as a war measure, issued the Emancipation Proclamation.

But it is one thing to make executive orders to govern the conduct of people in the executive department; it is an entirely different thing to make executive orders to govern the conduct of the American people.

So when can the president ever make executive orders with the force of law to govern the American people? See my next op-ed.


Posted Online:  Nov. 8, 2014 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea