Phantom Laws in the Age of Obama

February 11th, 2014

With the announcement that the Affordable Care Act’s employer mandate will once again be extended past the upcoming midterm election, we must wonder if it will ever be implemented at all.

Obviously, for those of us who believe that the law is fraught with problems, this isn’t necessarily a bad thing. As far as I’m concerned, if Congress won’t repeal the employer mandate then the next best thing is to delay implementation until the end of time.

Still, this leads to a question that seems to be coming up more and more these days.

Is this any way to run a country?

Why pass laws that will never be implemented or where only select pieces of legislation, as determined worthy by the president, will be put into effect?  Should laws even go on the books at all if any enforcement mechanism put in them is simply ignored at the whim of the current administration?

I’ve always thought our Founding Fathers amazingly prescient in drafting the Constitution.  They clearly anticipated every possible event.  As a student of law and history, I’ve often wondered exactly why they felt the need to specifically include a “take care” clause in the Constitution.  That’s the section of Article II that provides that the president will insure that the laws passed by Congress and signed by him are actually carried out.  Clearly, they could see a president like Obama coming, and they didn’t want to leave any grey area as to what might happen in such an event.

Yet despite this Constitutional mandate, the “take care” clause appears to be taking a hike a lot lately.  In fact, it’s now generally assumed and considered in Congress that the president will only execute laws if he feels like it.  That thinking led to a strange exchange this past week between Republicans and Democrats over proposed immigration legislation.

Republicans believe that enforcement at the border should be the trigger mechanism for other provisions of immigration reform Democrats seek.  The only problem is that now they clearly believe that even if they write legislation requiring such enforcement, the president signs it, and it becomes law, he won’t actually enforce that part of the law.  Presumably, he would just put into effect the parts of immigration reform he and the Democrats like.

Senator Chuck Schumer responded by, according to the mainstream media, “calling the Republicans bluff” by proposing that an immigration reform bill pass with everything in it that both sides want but that the effective date be 2017, after President Obama leaves office. While Schumer may see this as politically clever, it is also patently bizarre.

Is Congress now in a position where every new law has an effective date “after” Obama leaves office?

If we continue down this path of selective execution, what good would Schumer’s proposal do anyway?  What if the next president decides the Obama way of “executing laws” makes a lot of sense and that only certain parts of that law should be implemented?

Why pass any law if this is how it’s going to work?  Perhaps we could all save a lot of money on funding Congress and just put a suggestion box in front of the White House.  That way the president could decide for himself what actions to take on any given matter, and we could all quit stressing over the fact that no one is actually following the law anyway.

Obviously, this makes no sense.  Instead, a simple fact is becoming more and more patently clear.  The employer mandate is political poison.  Waiting to implement it when it’s politically popular could mean waiting forever.  Rather than continuing this charade, why not just admit it won’t work and repeal or rewrite it completely?

Otherwise, get used to a new reality where Congress simply pretends to be working while kicking every serious issue down the road until the asphalt ends.



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