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September 1, 2015 / 17 Elul, 5775
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The President And The Rule Of Law: Where Is Bill Clinton?

Soon after the oral argument in the Supreme Court on Obamacare, when it appeared there was considerable skepticism among the justices as to its constitutionality, President Obama expressed the view that it would be “unprecedented” for the unelected court to overturn legislation passed by an elected legislature. But not only did the president’s words fly in the face of the court’s role as ultimate arbiter of a law’s constitutionality, he has arrogated to himself the right to unilaterally override legislative enactments. We have already noted, for example, his effectively amending U.S. immigration law by creating an exemption in the law, which Congress has refused to enact, for certain illegals in terms of deportation.

Within hours of the Obamacare argument in the Supreme Court, when it appeared likely Obamacare would be struck down, President Obama issued a statement in which he said,

There is not only an economic element to this, a legal element to this, but there is a human element to this. And I hope that’s not forgotten in this political debate.Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

And I would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law.

To be sure, the president is a nationally elected figure, yet his role, in the words of the Constitution, is to “take care that the laws [enacted by Congress] be faithfully executed….”

Yet earlier this month the Obama administration asked the Supreme Court to strike down various provisions of the Defense of Marriage Act, overwhelmingly passed by Congress in 1966 (the House vote was 342-67, with two members voting present and 22 not voting while the tally in the Senate was 85-14 with one member not voting) and signed into law by President Bill Clinton.

Indeed, House Republicans have had to retain private counsel to defend the 16-year-old law because the Obama administration has declined to defend it in court. (Worthy of note is the fact that no state referendum seeking approval of same sex marriage has ever passed.)

However, Mr. Obama, who on May 9of this year became the first president to publicly express his support for same-sex marriage, believes the Defense of Marriage Act, which denies same-sex couples legally married under state law the federal benefits afforded to heterosexual couples, should not be enforced, in direct contradiction of a lopsided congressional vote to the contrary.

Another Clinton-era law enacted by Congress was welfare reform, which contained as a key provision the requirement that welfare beneficiaries must find and maintain some sort of employment in order to qualify for federally funded assistance. Last week, however, the Obama administration , through a memo from the Department of Health and Human Services, asserted it had the authority to waive that requirement and advised state welfare agencies they no longer had to enforce it.

The HHS claim is astonishing and palpably lawless. HHS is relying on two provisions of the Social Security Act which are among several that govern federal welfare programs. Section 402 requires states to submit an administrative plan to the federal government describing how they will spend federal welfare funds. However, Section 1115 also authorizes HHS to issue certain waivers to various sections, including 402, so that a state can experiment with different approaches. The HHS memo claims it is relying on Section 1115. So the HHS theory seems to be that since it can relieve states from the requirement that they provide a welfare-spending plan to HHS, HHS can also relieve them of the requirement that welfare recipients need to work in order to qualify.

This alone shows how much of a stretch this all is. But in addition there is the little matter that part of the language of Section 1115 is: “[A] waiver granted under Section 1115 or otherwise…shall not affect the applicability of Section 407 to the State.” And it is Section 407 that requires welfare recipients to work in order to receive benefits.

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