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The Lawless President

Publication Date: 
July 10, 2013
Source: 
The American Spectator
Author: 
Peter Ferrara

Professor Michael McConnell spoke with Peter Ferrara of The American Spectator to explain the history behind Article II, Section 3 of the Constitution, the section of the Constitution that spells out the duties of the President, and the modern manifestation of this legal history.

The duties of the President of the United States are spelled out in Article II, Section 3 of the Constitution, which states, inter alia, that the President "shall take Care that the laws be faithfully executed." As Stanford Law Professor and former federal judge Michael McConnell explained in yesterday’s Wall Street Journal, "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."

Section 1513(d) of the Unaffordable Care Act (aka "Obamacare") states unequivocally, "The amendments made by this section shall apply to months beginning after December 31, 2013." In other words, the provisions of Obamacare become fully effective in 2014, as a matter of duly enacted federal law.

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McConnell explained the history behind Article II, Section 3 of the Constitution:

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 led 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.

McConnell further explained the modern manifestation of this legal history. Official, governing opinions of the Office of Legal Counsel of the U.S. Justice Department state that the President has the power to decline to enforce laws he believes are unconstitutional. "But these opinions have always insisted that the President has no authority…to ‘refuse to enforce a statute he opposes for policy reasons.'" Which includes as well suspending a statute temporarily for political reasons.

The U.S. Supreme Court has backed up these opinions. In 1998, in Clinton v. City of New York, the Court struck down a duly enacted statute passed by Congress that granted line item veto authority to the President to strike out spending items he opposed in Appropriations bills. McConnell explained the reason for the ruling: "The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation." Liberal Justice John Paul Stevens wrote for the Court in Clinton, "There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes."