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Sunday, August 18, 2013

Lincoln, Obama, and Suspension of Laws

President Obama has frequently invoked Abraham Lincoln. At the Wall Street Journal, Georgetown law professor Nicholas Quinn Rosenkranz compares President Obama's suspension of the health care employer mandate with President Lincoln's suspension of the writ of habeas corpus.
First, Lincoln's action was at least arguably constitutional, while Mr. Obama's is not. The Constitution has a provision for suspending habeas. It has no general provision for executive suspension of laws. English kings used to suspend laws, but the Framers rejected that practice: The president "shall take Care that the Laws be faithfully executed."
Second, Lincoln volunteered an articulate constitutional defense of his action. Mr. Obama seemed annoyed when the New York Times dared to ask him the constitutional question. When the reporter asked whether he had consulted with lawyers about the legality of the mandate's delay, he declined to answer.

As for Republican congressmen who had the temerity to question his authority, Mr. Obama said only: "I'm not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers." Mr. Obama made no mention of Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who said: "This was the law. How can they change the law?"

Third, Lincoln offered a brilliant and compelling argument about the necessity of his action, given that the republic was in imminent danger. Mr. Obama's official version of the constitutional-necessity argument was nothing more than a breezy blog post attributed to an assistant secretary for tax policy. The title? "Continuing to Implement the ACA in a Careful, Thoughtful Manner."

Fourth, and most strikingly, Lincoln promptly looked to Congress to ratify his unilateral action. Congress agreed with Lincoln, and the president welcomed and signed new legislation. President Obama says only that he wishes he could follow the same course. Last week, he said he would like to "simply call up the Speaker" of the House to request a "change to the law" that would achieve his desired delay.
In fact, as the president knows, he doesn't even need to pick up the phone: On July 17, the House of Representatives passed the Authority for Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor). This would authorize President Obama's desired suspension of the law, just as Congress ratified Lincoln's suspension of habeas corpus. 
But unlike Lincoln, President Obama doesn't welcome this congressional ratification. He has called the House bill that fixes the constitutional problem he created "unnecessary," and he threatened to veto it.