Earlier in July Obama predicted that he would be able to win a third term if it were constitutional, stating “the law is the law, and no one person is above the law, not even the president.”
Ironic, because I don’t think the constitution has stopped him in the past.
From everything from preventing deportation to executive action on gun control, there’s a long list of constitutional violations Obama has racked up. So much so that Cato’s Ilya Shapiro published “top 10 lists” of Obama’s constitutional violations in 2011 and 2013 – though he does note that narrowing it down to 10 was the hard part.
We’re nearing the end of 2015, and Ilya’s new list is out. For the sake of space, I’ve narrowed down his picks to a top five list – centered around abuses related to immigration, the environment, and Obamacare.
1. Obamacare’s hidden tax on states. The ACA imposed a health-insurance providers’ fee on insurance companies, for the purpose of taxing the windfall they were expected to receive from increased enrollment. In March 2015, states were notified that they too would be assessed this fee, because they use managed-care organizations to provide Medicaid services. Nothing in the ACA allows the federal government to force states to pay the fee, so the administration left it to the “private” Actuarial Standards Board to determine what makes a state’s payments to managed-care organizations “actuarially sound,” as required by law. The board then interpreted that “actuarially sound” standard to require states to pay the taxes assessed on their managed-care organizations. For Texas, that means an unanticipated annual budget hit of $120 million. This assessment raises serious coercion issues, as the states have no choice but to pay the tax or lose their federal Medicaid funds. Texas, joined by Kansas and Louisiana, sued the government in October.
2. Deferred Action for Parents of Americans. Speaking of Texas suing the government: After President Obama decided in November 2014 that he had been wrong 22 times in saying he couldn’t give temporary legal status to illegal immigrants, a majority of the states took him to court. The administration engineered DAPA in the wake of Congress’s rejection of the very policies the program sets forth, in violation of the Administrative Procedure Act, immigration law, and the Constitution’s take-care clause. A district court temporarily enjoined DAPA in February 2015, which action the Fifth Circuit twice affirmed. Stay tuned for the Supreme Court’s resolution this coming June.
3. EPA’s Clean Power Plan. In June 2014, the Environmental Protection Agency proposed a new rule for regulating power-plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal-fired plants are.
4. EPA’s Clean Water Rule. On May 27, 2015, EPA announced its new Clean Water Rule, which aims to protect streams and wetlands from pollution. The agency insists that the rule doesn’t affect bodies of water not previously regulated, but several groups have sued on the basis that the rule’s definitions of regulated waters greatly exceed the EPA’s authority under the Clean Water Act to regulate “waters of the United States.” The Supreme Court has thrice addressed the meaning of that phrase, making clear that, for the EPA to have regulatory authority, a sufficient nexus must exist between the location regulated and “navigable waters.” The Clean Water Rule, however, purports to give EPA power far beyond waters that are “navigable” by any stretch of the definition of that word.
5. EPA’s cap-and-trade. On October 23, 2015, EPA issued a carbon-emissions cap-and-trade regulation, establishing for each state limits on carbon dioxide emission, with four interim steps on the way to the final goal. The focus is on cap-and-trade as the means to meet the limits. EPA says that this rule, too, is authorized by Section 111 of the Clean Air Act, but Congress considered and rejected such a cap-and-trade program in 2009. Far from being authorized by the Clean Air Act or from lying in some zone of statutory ambiguity, this new regulation contradicts the express will of Congress.
Despite all his constitutional overreach, Obama at least won’t try running for a third term, and we can be grateful for that.
About Analytical Economist
The Analytical Economist is a freelance financial, political, and economics writer. His work has appeared in a variety of publications, including National Review, the Foundation for Economic Education, Ludwig von Mises Institute, among many others.