By John Fund
Chuck Todd, the political director of NBC News, startled much of Washington on Sunday morning when he announced on Meet the Press that White House aides he’s spoken to have lost confidence that immigration reform will pass. He reported that “suddenly the White House doesn’t see a path” to passing a bill through the House this year.
There are many reasons why immigration reform is in trouble, ranging from the fact that immigration is not currently a burning political issue to the inherent complexity and internal contradictions of a 1,200-page bill.
But there is another less-discussed reason. The Obama administration’s instinctive dishonesty and contempt for the rule of law are finally catching up with it. Few Republicans in the House — even those who devoutly want immigration reform — trust the Obama administration to enforce with consistency and integrity anything that passes Congress.
Take the 900-page monstrosity of a law that’s been dubbed “Obamacare.” When it passed back in 2010, the law was clear on many points. It decreed that beginning in 2014, any company with more than 50 full-time employees would be required to offer them health-care insurance or pay stiff fines. But it’s been impossible, in the three years since the law’s passage, to work out the Byzantine requirements of that mandate. Max Baucus (D., Mont.) said in a congressional hearing he feared that Obamacare’s implementation would result in a “train wreck,” and many other Democrats have come to share his anxiety. White House aides fretted that enforcing the mandate’s timetable would hurt job creation in the run-up to the 2014 midterm elections and put Democratic control of the Senate in jeopardy.
The White House could have handled the problem as the Constitution envisioned and opened up negotiations with Congress to change the law. But it quickly concluded that the Republican House would demand too much in exchange for any adjustment to the law. So instead the administration had a blog item quietly posted on the Treasury’s website just before the July Fourth holiday. Under the Orwellian headline “Continuing to Implement the ACA [Affordable Care Act] in a Careful, Thoughtful Manner,” Assistant Secretary for Tax Policy Mark Mazur announced that enforcement of the employer mandate would be delayed until 2015. A Treasury official claimed that the administration has “longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.” Oh, really? Even though the law is quite clear that the mandate shall be effective as of 2014?
Representative Darrell Issa (R., Calif.), chairman of the House Oversight and Government Reform committee, says the announcement represents “policy by blog post” and that it is “another in a string of extra legal actions” that President Obama has used to evade laws and the intent of Congress. He noted earlier this year that the Obama administration was interpreting the health-care law to provide tax credits in health exchanges even if states refused to set them up.
“As a former constitutional-law teacher, President Obama must know that this action gets into very questionable constitutional territory,” Issa told the Capitol Hill newspaper Roll Call. “It also paves the way for future administrations to simply not enforce parts of Obamacare they don’t believe are functioning well.”
Rick Klein of ABC News concluded that the announcement was “a blow in every conceivable way to the Obama administration — an admission that its signature legislative accomplishment isn’t ready for prime time, just as the law’s critics have been arguing and arguing.”
Ultimately, the greatest damage from delaying the employer mandate may come in the way it solidifies House Republican doubts about the immigration bill. Representative Phil Roe (R., Tenn.), chairman of an Education and Workforce subcommittee, says that he doubts the administration can be trusted to enforce the will of Congress when it comes to border security or any other part of the immigration bill. “They have shown no respect for traditional Constitutional separation of powers, and that makes it difficult to pass laws where the fear is that they will simply ignore the parts they don’t like,” he tells me. The Obama administration has not hesitated to simply ignore the clear language of Obamacare. Why wouldn’t it disregard the immigration bill in the same way? In addition, the Gang of Eight bill is stuffed with instances of discretion – in other words, opportunities for administrative meddling. It includes 222 mentions of the word “may” and 153 uses of “waive.” That’s an awful lot of discretion to hand to an administration that is expert at interpreting laws creatively to suit whatever political advantage it desires.
In the classic 1960s free-market poem “Tom Smith and His Incredible Bread Machine,” an entrepreneur is pursued and prosecuted by an ideologically driven Justice Department on trumped-up charges. Just before he is sentenced, he asks the judge presiding over his trial what is happening to him. “The rule of law, in complex times, has proved itself deficient,” she sneers at him. “We much prefer the rule of men! It’s vastly more efficient.”
But our system wasn’t designed by the Founding Fathers to be efficient. Indeed, it was designed to rein in the arbitrary and capricious use of power. The growing belief that the Obama administration can’t be trusted to respect the rule of law may prove to be one of the biggest obstacles it faces in passing the immigration reform it so powerfully desires.