Obama Thinks He's King James II

Michael W. McConnell of Stanford Law School and the Hoover Institution says as much, here:

President Obama's decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

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I'd say rather that this episode raises grave concerns about Obama's commitment to the role of the executive in our system of government. He understands it well enough, and wants to dispense with it. We therefore should dispense with him.

A Hiving We Will Go

Michael W. McConnell of Stanford University, a former federal judge on the US Court of Appeals for the Tenth Circuit, makes the point today many of us have been trying to make all week, namely, that the healthcare bill that might pass the House, consisting of two parts, is going to be "hived," a fine old English word of Germanic origin which means "separated off from a larger thing."

This hiving of the bill will mean that the president will be presented with a bill to sign which is missing a part of itself by intent and design, because the House which is sending it knows what the constitution's meaning is, namely, that bills must be identical from the House and the Senate before they can be signed into law. They just don't want to admit it. The House wants to pretend to have voted for the Senate healthcare bill just as much as it wants to pretend to be sending the same bill as the Senate passed to the president.

The problem is that what the president will sign won't be the same bill that passed the Senate, nor will it have passed in the same politically accountable way, with Yeas and Nays associated with it. To put it in a nutshell, House leadership doesn't have the courage of its lawless convictions. They're a bunch of cowards and traitors, and they know it.

Here's the relevant passage from McConnell:

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

The passage is part of an opinion piece published in The Wall Street Journal dated March 20, 2010 under the title "The Health Vote and the Constitution -- II: The House Can't Approve The Senate Bill In The Same Legislation By Which It Approves Changes To The Senate Bill."