Friday, March 7, 2014

Law Prof: The Like it/Keep it Fix Invites Greater Executive Transgressions Down The Road

From University of Michigan Law Professor Nicholas Bagley:
... The President does have discretion not to enforce the law in discrete cases, but that discretion is limited by the President’s constitutional duty to “take Care that the Laws be faithfully executed.”
As Zach Price has recently shown, the President exceeds the scope of his enforcement discretion when he publicly commits not to enforce a congressional statute against a large category of offenders. The like it/keep it fix would seem to fit the bill. In practice, the fix invites insurers to violate a statute that prohibits them from continuing to sell non-compliant plans. The “take Care” duty has not traditionally been understood to countenance that sort of thing.
Why might this matter? It’s not because the like it/keep it fix will be challenged in court. No insurers challenged the first fix, although some probably had standing to do so. I doubt anyone will challenge the second fix either.
Nor is the administration likely to pay much of a political price for skirting the law. Sure, the fix will reinforce the storyline that an overweening administration is forcing an ill-conceived law down a resistant public’s throat. But most of the damage on that front has already been done. In any event, the administration is probably right that it’s better to have one bad headline than a round of cancellation notices during the midterms.
The lack of a persuasive legal justification matters most not for the current political battles, but for the future. Because the Constitution doesn’t crisply detail what the “take Care” clause means, the phrase accrues meaning through practice. The Obama administration’s repeated delays of the ACA now stand as precedent for future administrations that would also like to postpone statutes. The more the administration delays the ACA, the firmer that precedent becomes. ...