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08/13/2013

Jennifer Rubin on the Dispensing Power
Michael Ramsey

As a followup to this post on Michael McConnell and Mark Tushnet on the dispensing power, here's Jennifer Rubin in the Washington Post: Obama Defends His Lawlessness.

Among President Obama’s more outlandish comments at his Friday press conference was his utterance in response to a question as to whether, given his unilateral postponement of Obamacare’s employer mandate, other presidents could be allowed to pick and choose what parts of laws to enforce.

[He responded] “We did have the executive authority to do so, and we did so. But this doesn’t go to the core of implementation.”

As for the “executive authority,” I’d be curious to know where it comes from. Certainly not the law itself. Does he believe the Constitution allows him to only enforce parts of laws he thinks will work? Recall that as a senator Obama bitterly denounced “signing statements,” which entailed a presidential declaration that certain parts of a law were unconstitutional and therefore would not be enforced. Imagine what he would have said had President George W. Bush decided to ignore parts of laws simply because they were bothersome.”

As Michael McConnell's article (here) emphasizes, there is an important constitutional point here: the President does not have the "dispensing power" claimed by seventeenth-century English monarchs.  At the same time, as Mark Tushnet's post (here) emphasizes, it's important to look closely at the statute to see if it gives discretion.  I'm not sure on the postponement of the health care penalties.  (Jennifer Rubin says the power "[c]ertainly [does] not [come from] the law itself" but I'm not sure how she knows.  I am not going to read that whole statute to try to figure it out, but given its length and complexity, and the ingenuity of lawyers, I doubt it's "certain").

On the other hand, what Professor Tushnet says of the President's critics (that they need to "get into the weeds" of the statute before declaring a presidential overstep) seems equally true of the President.  If the statute authorizes postponement, shouldn't he be pointing to specific provisions rather than invoking unspecified "executive power"?  And if the statute doesn't authorize suspension, I think he has a serious constitutional problem that his "executive Power" (in the Article II sense) is not going to solve.