A Veto Threat against the Rule of Law

Why would a president threaten to veto a bill that only does what he wants to do anyway?

Earlier this month, President Obama announced that he would delay the enforcement of Obamacare’s employer mandate—the provision imposing a special tax on employers who don’t provide the sort of insurance the Affordable Care Act calls for. The mandate was to take effect in 2014; now it’ll take effect in 2015 instead.

Whatever one thinks of the employer mandate , that was a power grab. Congress passed a statute that establishes a tax effective in 2014. Not whenever the president wants, not whenever he thinks best. 2014.

Why does this matter? It matters because the rule of law matters—whether or not a law is a good one, people need to be able to rely on the government to follow it. Government has overwhelming force, and if we are to be able to organize our lives in its presence, we must be able to predict what it will do. That means it must obey the law. The law may grant officials discretion, but even lawful discretion can be dangerous; discretion that rejects the law’s constraints is much more so.

And it matters because limiting the power of any one person matters. The more power the president has, the harder it is to control him. The Constitution attempts to keep the president’s power limited by, among other things, giving the power to enact tax laws to Congress, and not to the president. And it’s kindergarten civics that it takes an act of Congress to amend an act of Congress.

That’s why it’s remarkable that the president is threatening to veto a bill that would do nothing but delay the employer mandate for a year—just what the president has already done. The administration depicts this bill as part of another attempt to repeal Obamacare, but unless by delaying the employer mandate Obama himself has annulled Obamacare, this bill wouldn’t either. With or without the bill, there would be an employer mandate, and with or without the bill, it would be delayed till 2015. The only difference is that with the bill, the employer mandate would be delayed by law; without the bill, it would be delayed by the president’s say-so. ( Another bill included in the same veto threat would delay the individual mandate, but that’s a separate bill; if the president only wanted to fight the substantive issue, he could threaten to veto only that one.)

By opposing this bill, the president is not defending Obamacare. He is opposing, not a Republican proposal to destroy his signature legislation, but a Congressional assertion that it takes an act of Congress to amend a federal statute. He is fighting only for the power to substitute his will for a plain statutory requirement. He is attacking the rule of law.

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