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A Superfluous Congress

There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.

No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.

Ceding all these points, the question remains: On what conceivable constitutional ground can a president merely announce, by fiat, that provisions of a duly enacted statute will be deferred—not on the pretext of a constitutional dispute, on which basis presidents have been known to decline to enforce laws, but simply for reasons of policy?

That President Obama signed the law in question is not the point; in fact, it obscures it. The danger inheres in a future conflict between Congress and the President, as, for example, when Congress attempted—lamely—to restrain the Bush Administration from torturing suspected terrorists. Suppose, rather than issuing a signing statement announcing his intent not to follow the law for constitutional reasons—in the face of which, by the way, Congress was also pathetically compliant—Bush had instead acknowledged it but deferred enforcement because it was “unworkable”?

Or take a future example: Congress—this is pure fantasy, but such is the blogger’s prerogative—by statute orders the closure of the prison facility at Guantanamo Bay. The president signs rather than vetoes the bill but subsequently announces it is impractical and that he or she will consequently follow it when he or she believes it prudent to do so.

That arrangement would render Congress superfluous, a merely recommendatory body—which is, not incidentally, the posture to which the legislature has allowed itself to be reduced. With the exception of the occasional Rand Paul, Congress has been silent. Republicans have seized on the delays to call for repeal of the entire law—evidently oblivious to the thumb being stuck, meanwhile, in their constitutional eyes.

Congress’ failure to use the constitutional tools at its disposal to protect its institutional interests marks the single greatest departure from the constitutional regime delineated in The Federalist. Presidents share this blame, but legislators shoulder it. They have been parties to their own defenestration, substituting their personal interest in re-election—or, at the most charitable, in ideological outcomes—for the institutional self-defense in which Publius assumes they will engage. No president acts this way. If Congress presumed, for example, to tell the president whom to nominate to the Cabinet or where to send the Third Fleet, he would not go along with the pretended authority simply because he agreed with how it was exercised in that case.

There are myriad reasons for the difference, the foremost being that the interests of the man and the constitutional rights of the place are, in the case of the president, one and the same, whereas they are—for 535 members of Congress—diffuse. But for Congress to be this flaccidly compliant in the face of this flagrant a challenge betrays the oath its members take, which is not to good policy but rather to the Constitution.

That the Constitution is at stake is evident in the fact that this incident will be remembered approvingly in a future case of conflict between the executive and legislature. The precedent it creates places the executive totally beyond the reach of law. This is the predictable inward turn of the unitary executive theory. Those who thought it could be constrained to the war on terror were either historically deluded or willfully ignorant of what Publius calls the “encroaching nature” of power.

Woodrow Wilson would detect an upside: streamlining government by simply depositing all powers in the president’s hands. But if we are going to render Congress superfluous, we might as well save something in the bargain. The institutional operating costs of Capitol Hill last year approached $5 billion. Those savings would be a small down payment on the deficit. Of course, the constitutional costs—concentration of all powers in a single hand, “the very definition,” Publius teaches, “of tyranny”—would be far higher. But nobody seems to be counting those.

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