Monday, January 6, 2014

Cameron Smith: America’s shift from rule of law to rule by executive branch

  The "rule of law" has served as the backbone of democracy from America’s founding. First, all Americans agree to be held accountable under the law. To secure that consent, the process to enact, administer and enforce those laws must be transparent, democratically accessible, and impartial. While that process has rarely been perfect, it has consistently created stable, predictable laws that serve as the guiderails for civil society.

  The last several decades have marked a continued erosion of the rule of law in America’s federal government. The gradual change has resulted from Congress ceding its constitutional powers, leaving essentially a type of ad hoc rule by the President and the executive branch agencies.

  For example, most of the recent political battles related to the EPA involve legislative authority delegated to the agency under the Clean Water Act and the Clean Air Act. The last major amendments to those laws by Congress occurred in 1987 and 1990 respectively. Since then, the executive branch has used its tremendous regulatory power to essentially create updated versions of the laws that carry the same force as those duly enacted several decades ago.

  Not only has Congress abdicated its responsibility for actually writing law, but it has even pushed aside its famous "power of the purse." For fiscal year 2013, mandatory federal spending (Medicaid, Medicare, Social Security, student loans, etc.) accounted for $2.203 trillion. Factor in net interest of $223 billion, and Congress is left with $286 billion in revenues before it starts borrowing money. To put the amount in perspective, it would not cover the current state and local debt obligations of California, let alone fund much of what we consider the responsibility of the federal government.

  The Patient Protection and Affordable Care Act (PPACA) is the most recent embodiment of this transformative shift in federal power. From the law’s inception, congressional champions planned to delegate immense power to executive branch agencies charged with actually writing the "law" after its enactment.

  The process of implementing the PPACA has been anything but transparent and predictable. Many of the delays in implementing the PPACA are not mere technical problems like those that occurred with the federal exchange website. They are politically timed and calculated modifications to material elements of the law. From continued exemptions for insurance products deemed non-compliant under the PPACA to delaying the employer mandate and now the individual mandate for certain Americans, President Obama’s handling of the PPACA has been freewheeling adjustments of law based on America’s political reactions.

  Consider the latest delay of the individual mandate for those whose health insurance plans were canceled because of PPACA requirements. Six politically-vulnerable Democrat Senators sent a letter to Health and Human Services Secretary Kathleen Sebelius asking for her to "interpret" the PPACA’s hardship exemption from the individual mandate to include "an individual whose 2013 plan was canceled and considers their new premium unaffordable."

  Shortly thereafter, the individual mandate was changed to accommodate the Senators’ request.

  Americans who saw health insurance as unaffordable prior to the PPACA’s enactment are now subject to penalties. At the same time, the executive branch has unilaterally given those whose policies were canceled on account of the PPACA a reprieve because of political pressure. Not only does this create unequal treatment under the law, but it creates a new politically-driven "hardship" after Secretary Sebelius had already defined the term. Certainly, a "belief" that the PPACA’s marketplace plans are not affordable is not a hardship equivalent to homelessness as it now appears in the regulation.

  During the Bush Administration, the political left, including then-Senator Obama, highlighted similar concerns regarding the scope and utilization of executive power, specifically related to national security policy. Now that the political ideology of the executive branch has shifted, those structural concerns should be just as applicable. If Americans fail to address the constitutional deterioration of the federal government, our nation will become increasingly subject to a powerful executive able to bend and bind the law at will. An executive with few legislative and judicial checks may indeed be politically expedient, but the Constitution, another cornerstone of America’s success, was specifically designed to prevent that from happening.

  About the author: Cameron Smith is Vice President and General Counsel for the Alabama Policy Institute, an independent non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.

  This article was published by the Alabama Policy Institute.

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