Presidential Activism – The Misuse of Presidential Powers
One of the questions we asked in our April survey was whether you thought that, in the last few years, the use of mandates, regulations and Presidential orders had, increased, decreased or stayed the same. 96.3% (1,537) of you said they had increased, 2.2% (35) said they had decreased and 1.4% (23) said the number had stayed the same. Clearly you believe the use of this type of Presidential power had increased. What we didn’t ask was whether you thought this was bad. I’ll go out on a limb here and conjecture that most of you think this is a bad use of Presidential powers. Hopefully, as you read further about how and where the use of this power has increased in the last few years you will understand more clearly why this attack on the checks and balances of the Constitution is truly a danger to our country.
The use of Presidential edict is not new . . . President Lincoln was, and in some quarters still, criticized for his suspension of habeas corpus during the civil war and President Roosevelt took many liberties as he dealt with the depression. But it hasn’t just been the executive branch that has threatened the constitutional balance. Congress passed legislation at the end of that last century that created the Base Realignment and Closure (BRAC) commission to deal with the closing of military bases because they couldn’t seem to do the work themselves. It amounted to Congress giving up their Constitutional duties to an unelected commission. They were willing to forgo an important Constitutional check for the convenience and political cover of a commission.
President Clinton instituted many parts of his failed healthcare reform (often called Hillary care) through the use of executive order and went on to negotiate with Mexico and then sign a presidential order that directed that Mexico and the U.S. would adhere to environmental standards that had been instituted by, that’s right, his presidential order. This agreement was essentially a treaty with Mexico without the Senate’s approval. President Bush used extraordinary renditions, the extradition of foreign people in our country to other countries without the normal legal processes, in response to our fight against terrorism after 9/11. Many felt this action was outside of the powers of the executive branch.
Some may excuse the use of these powers because they were in response to wars or extreme economic problems but the Constitution has very explicit language as to the situational application of any of its parts. Even when an action seems to be supported by the Constitution, as in Lincoln’s case in referencing section 9 of article 1 of the Constitution as the basis for his suspension of habeas corpus, his suspension of rights granted by the Constitution was then, and is still, being debated. The point to be made is that the founding fathers relied on the checks and balances of each branch of government to limit the power of each. RetireSafe’s fear is that this Presidential power is being applied in broader ways and more often than ever before. It has gone from an uncommon occurrence to a way of doing business. It’s Presidential activism and it’s dangerous.
For instance, consider the Affordable Care Act (Obamacare). One of the basic problems people had with the law was its lack of detail and the power it gave to the Secretary of HHS (Health and Human Services). It was so broad that some Republicans said that rather than repeal the law they could just win the White house and Congress, put in their own Secretary of HHS and write the regulations the way they wanted and create a healthcare system of their own design. This approach would also have been a misuse of power.
Unfortunately, Obamacare had places where it was very detailed. The CLASS (Community Living Assistance Services and Supports) Act was a long term care program that was a legacy of Senator Ted Kennedy. While it was unworkable and financially unfeasible (a fact we pointed out many times) it was still part of legislation that had been voted on and signed into law. The Secretary of HHS declared in October, 2011, with the blessing of the President, that the CLASS Act was not viable and declared that it would not be implemented as the law described. Subsequently none of the deadlines in the law were met and that portion of the law was not implemented. This decision was made, not by any official amendment voted on by Congress but simply by the declaration of the Secretary of HHS. It was over a year later when that part of Obamacare was finally repealed by Congress.
The independent Payment Advisory Board (IPAB) has been called among other things a death panel. While rhetoric abounds about what it was or was not, there is no doubt that it was an unelected panel of bureaucrats that were not checked by either the judiciary or legislative branches of government and could make huge unchecked changes to Medicare.
The President’s misuse of the executive branch’s power has not been limited to Obamacare. In 2014 President Obama, through the use of executive order, gave quasi-legal status and work permits to millions of illegal immigrants. If Congress couldn’t do their job he would take matters into his own hands. This action has made it to the Supreme Court and they will decide if it was legal in a few months. President Obama had no qualms about pushing the envelope of his powers and with the state of the present Supreme Court he may get his way.
Just recently President Obama directed the Treasury to change its rules so that a change of corporate headquarters to a foreign country, called inversions, to avoid taxes would be much more difficult. It was a not very veiled action against the merger of Pfizer and Allergan that was in process and his sudden rule change worked. The merger was cancelled and it ended up costing Pfizer $150 million.
Finally, Medicare directed that the payments for Medicare Part B infusions would be cut. This was done, not after consultation with stakeholders or after implementing a carefully planned and evaluated small pilot program, but as a knee jerk reaction to drug prices directed by a President looking for legacy. It was the basis for our latest survey and it brings us back to the point that the use of executive order, mandates and regulations to advance an administrations agenda has become a way of doing business.
RetireSafe has been lobbying, submitting comment letters to the Centers for Medicare & Medicaid Services and teaming up with other groups to have this egregious payment cut repealed. We don’t want this latest misuse of executive power to be implemented but we will also be working on the broader problem of Presidential activism and the loss of the important checks and balances. We think it is a dangerous threat to our nation, and it can’t be allowed to become a way of doing business, no matter who is in the White House or who controls Congress. We will continue to work to stop this dangerous threat to our nation.
We would appreciate your thoughts on this issue. Please don’t hesitate to reply to this email and tell me how you feel and what you think ought to be done.