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Executive orders -Time for a change?

February 11, 2014

Executive orders are a bit of a grey area within constitutional law. The U.S. Constitution does not provide guidelines defining the specific scope of executive orders or directives. Presidents throughout history have issued executive orders to clarify the way they expect certain constitutionally passed laws to be interpreted, or to assist other departments within the government , at the request of those departments, to follow the laws. This practice is constitutionally permitted and has the backing of two centuries of case law.

There is no clause or interpretation within the Constitution that gives the President the right to make new laws  without congressional action, or to disregard the laws passed by Congress. To the contrary, the Executive branch of our government is charged with the responsibility of assuring  that the laws passed by Congress are” faithfully executed”, i.e. applied as passed. Executive orders are subject to judicial review after the fact and can be overturned by the courts.

Additionally, no president has ever been granted the constitutional power to unilaterally invalidate or change  laws or portions of them. Laws can be struck down by the judicial branch or changed  or repealed by Congress, but that legal process must be observed in order for the constitutional process to continue to be valid.

The act of criminalizing certain acts, or writing new laws solely by executive order has never been a valid exercise of the executive powers clause. In addition, our entire body of case law rests on the presumption of innocence, until guilt is proven in a court of law.

Viewing this practice through the lens of current events, this total lack of firm guidelines governing the executive order and its cousin, executive directives, is indicative of a need to formalize the process.

It is being widely reported that a new tweak to the ACA would require employers who lay off or terminate workers to certify to the Internal Revenue Service, under penalty of perjury, that those separations were not done to avoid compliance with the worker coverage provisions of the act. This would essentially criminalize normal and usual business operating procedures. In addition, the specific provisions of the law as passed have continually been placed on hold or simply changed by  presidential declaration.

The IRS is one of the few agencies that can and does not only presume guilt , but impose a sentence in advance of a judicial process. As anyone who has ever been audited by the IRS or had a deduction disallowed  knows, the agency first tells you that your reporting to them is inaccurate or fraudulent, metes out punishment in the form of a fine or penalty, and it is up to you to prove them wrong. By temperament as well as code, the IRS is always in an adversarial relationship with taxpayers and the general citizenry.

Businesses hire and fire for many reasons, the most common ones being seasonal fluctuations in staffing requirements such as holiday hiring , weather-related work stoppages, and economic  business conditions. Occupations such as construction, retail sales, and healthcare utilize this method of controlling costs as a part of their business survival strategy. They are also allowed by law to terminate employees for a number of valid disciplinary reasons, such as being habitually late for work or theft.

Apparently now they are not allowed to make those decisions if the termination is deemed to have been done to avoid the provisions  of the ACA relative to the size of the workforce. The final decision on motivation will now be in the hands of the IRS. Since the IRS is the department charged with enforcing the ACA, it isn’t hard to see where that mindset came from, given their past history. In any given situation, the IRS is going to presume guilt. Given the recent past history of the IRS, it isn’t difficult to imagine that someone in that agency asked for this “clarification”.

Businesses have to be able to adjust to economic realities. If they have 52 or 102  employees, and if either furnishing healthcare or paying a $2,000 fine per employee  would put them out of business or prevent them from conducting business in a normal manner, it stands to reason that they will adjust their payroll to allow them to continue in business.

If this order or directive stands as law, there is nothing to prevent the president from mandating that all employers must maintain a certain number of employees regardless of their ability to pay for them. At that point the idea of a free society is well and truly over.

As a constitutional law professor, President Obama may well take the tack that he is simply making the laws more clear or is reacting to a specific department’s request and is thus acting within his constitutional authority, consistent with past precedent. That would certainly be a judicially  contestable viewpoint if someone chooses to file the appropriate briefs.

If the ACA is so flawed that it has needed over two dozen such clarifications to date it is obviously a very poorly written piece of legislation and a congressional do-over is probably in order.

More concerning than the ACA’s basic structural deficiencies or even the motivations of the current President,  is that if a law can be fundamentally changed on the whim of any president, then no law can be relied upon as written and passed by Congress. This tendency toward autonomous action has been prominently displayed on several occasions by this particular president both by action and declaration.

It is probably long past time to codify the practice of issuing executive orders, defining the specific scope and intent of such orders and directives and making them subject to judicial or congressional review before they can take effect.


©Rebecca L. Baisch 2014  Reprints by request


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