US Politics: Check with a Court before you see your Doctor

[Inigima]

Tracker, I think you are being overly generous in interpreting your own argument, and I think my read is accurate and defensible. Congress passed the ACA as is; unless it authorizes him to make such changes (does it?) he is modifying duly passed legislation, which is not the proper function of the executive branch. I am in agreement that it's good policy, but that policy is not his prerogative to set.

[Fez]

Congressional obstruction only enhances the power of the executive though.

I'm not sure what specific method beyond legislation you are referring to that Congress has at it's deposal.

I didn't think I had referred to anything beyond legislating and the refusal to legislate. Although Congress also has investigatory powers, so they can always try finding the executive branch's skeletons, if there are any.

[Shryke]

Tracker, I think you are being overly generous in interpreting your own argument, and I think my read is accurate and defensible. Congress passed the ACA as is; unless it authorizes him to make such changes (does it?) he is modifying duly passed legislation, which is not the proper function of the executive branch. I am in agreement that it's good policy, but that policy is not his prerogative to set.

Is it not? The executives purpose is to implement policy passed by congress. This involves broad discretionary power by it's very nature since if it didn't, there would be no purpose to the executive.

[TrackerNeil]

Ultimately what you're saying here is that the President should have the power to do the things you like but not have the power to do the things you don't like. That's obviously unworkable, we agree to enforce certain rules of process because democracy depends on them.

No, what I am saying here is what I actually said here.

Also, presidents have done what Obama is doing for a long, long, time. If Congress wants to rein that in, fine, but let's not get drawn in by Republican spin.

[OnionAhaiReborn]

No, what I am saying here is what I actually said here.

You acknowledged that your stance is subjective:

I think it's a problem if the president declines to enforce policies that protect people from harm. However, delaying the employer mandate really doesn't cause anyone serious harm; it's intended to smooth over a period of transition. I guess you can say that my definition is subjective, to which I can only respond that much public policy is subjective in nature. However, I think Obama could reasonably defend delaying the employer mandate, whereas he could not defend, say, telling all EPA staffers to cease enforcing the Clean Water Act.

So what exactly are you disputing about my characterization?

Also, presidents have done what Obama is doing for a long, long, time. If Congress wants to rein that in, fine, but let's not get drawn in by Republican spin.

I agree that Presidents have done what Obama is doing for a long, long, time. They've done much worse! And while this does make me skeptical of the genuineness of the Republican awakening to the dangers of executive overreach, it doesn't make Obama immune to criticism on this issue.

[TrackerNeil]

You acknowledged that your stance is subjective:

I said you can call my stance subjective, and I can't really dispute that. However, I don't know that the matter really is subjective. One can compare the harm from one lack of enforcement to the harm of another and see which harm is less, but that doesn't make the matter objective.

[The Notorious]

I applaud the libertarians support of this lawsuit ...... It's about time the feds get fucking serious about enforcing the narco laws on the books! And why havent those illegal kids at the border been deported yet? Damn it obama, do your job!

[OnionAhaiReborn]

I said you can call my stance subjective, and I can't really dispute that. However, I don't know that the matter really is subjective. One can compare the harm from one lack of enforcement to the harm of another and see which harm is less, but that doesn't make the matter objective. 

 

It's coming down to your definition of harm. Everyone believes their policy preference is the least harmful, and what policies you like or don't like come from that- and I'm probably inclined to agree with you in a lot of cases on preference. But do you not acknowledge that we need a process for negotiating preferences with others who do not agree and that without respect for the rules of this process we can't have functioning democratic institutions?

[The Notorious]

But do you not acknowledge that we need a process for negotiating preferences with others who do not agree and that without respect for the rules of this process we can't have functioning democratic institutions?

Isn't that what elections are for? Seems to me that many republicans cannot except the fact that elections have consequences.

[Mudguard]

I said you can call my stance subjective, and I can't really dispute that. However, I don't know that the matter really is subjective. One can compare the harm from one lack of enforcement to the harm of another and see which harm is less, but that doesn't make the matter objective.

I think the subjective part probably would be in the assessment of the level of harm and where the cutoff is. How would you objectively assess the level of harm? This would not be easy to do in many cases. Just try and reduce it to an monetary value? Probably not a good idea for a variety of reasons. Do you also have an objective level where it's OK to not enforce? From a practical standpoint, setting up an objective framework doesn't seem workable, which means that the decision on which laws to enforce and not enforce will probably be subjective.

I'm not 100% against the idea that the President not enforce a law. If somehow, a truly heinous law was passed, I would be OK with the executive branch refusing to enforce the law. But in all other cases, my preference would be for enforcement. I think this type of discretion should only be excercised in exceptional circumstances (subjective, I know). Personally, I don't feel that the employer mandate is a heinous provision that will cause great harm if enacted, so my position is that it should be enforced.

And when discretion is exercised, I think it's proper for people to challenge it through an appeal to the judiciary. There should be a check on this type of discretion.

[OnionAhaiReborn]

Isn't that what elections are for? Seems to me that many republicans cannot except the fact that elections have consequences.

First we have elections, then we have legislating and governing. Getting elected to the Presidency does not confer unlimited power to the winner on the basis of elections having consequences. A candidate is elected to an office with specific powers delegated either by the Constitution or acts of Congress.

[DanteGabriel]

First we have elections, then we have legislating and governing. Getting elected to the Presidency does not confer unlimited power to the winner on the basis of elections having consequences. A candidate is elected to an office with specific powers delegated either by the Constitution or acts of Congress.

I think this is arguing past the point a little bit. Elections have consequences -- the consequence of a Presidential election has generally been that the President had an agenda he ran on, and so he gets to implement that agenda, with the consultation of Congress, making compromises with the opposition party, etc.

Obama's very solid (relative to elections in the last quarter-century or so) re-election in 2012 should have been a justification of the mandate to implement the ACA. Instead the Republicans have continued to reject the mandate conferred by that electoral victory and simply refused to work with him.

If we'd had a Congress that was actually capable of doing its job, they would work with the President to change the flaws in the bill. Republicans wanted the public mandate delayed, did they not? Why refuse?

Why refuse to do something about the border crisis? Because the Republican Congressional caucus has bought into the incredibly cynical self-fulfilling doom prophecy of Ronald Reagan, who said that government is the problem.

[Shryke]

I think the subjective part probably would be in the assessment of the level of harm and where the cutoff is. How would you objectively assess the level of harm? This would not be easy to do in many cases. Just try and reduce it to an monetary value? Probably not a good idea for a variety of reasons. Do you also have an objective level where it's OK to not enforce? From a practical standpoint, setting up an objective framework doesn't seem workable, which means that the decision on which laws to enforce and not enforce will probably be subjective.

I'm not 100% against the idea that the President not enforce a law. If somehow, a truly heinous law was passed, I would be OK with the executive branch refusing to enforce the law. But in all other cases, my preference would be for enforcement. I think this type of discretion should only be excercised in exceptional circumstances (subjective, I know). Personally, I don't feel that the employer mandate is a heinous provision that will cause great harm if enacted, so my position is that it should be enforced.

And when discretion is exercised, I think it's proper for people to challenge it through an appeal to the judiciary. There should be a check on this type of discretion.

If Congress has a problem with the President's actions, they can pass legislation or impeach. That's why those systems exist.

[The Notorious]

The constitution is vaguely broad and subjected to different interpretations, and congressional acts are often passed without setting aside sufficient funding to carry them out successfully. Therefore it is imperative that a president has the discretion to apply the power of the executive branch to make the country function properly.

[Mudguard]

If Congress has a problem with the President's actions, they can pass legislation or impeach. That's why those systems exist.

Those are also options, along with appealing to the judiciary. That's why the judiciary exists.

[OnionAhaiReborn]

I think this is arguing past the point a little bit. Elections have consequences -- the consequence of a Presidential election has generally been that the President had an agenda he ran on, and so he gets to implement that agenda, with the consultation of Congress, making compromises with the opposition party, etc.

Obama's very solid (relative to elections in the last quarter-century or so) re-election in 2012 should have been a justification of the mandate to implement the ACA. Instead the Republicans have continued to reject the mandate conferred by that electoral victory and simply refused to work with him.

If we'd had a Congress that was actually capable of doing its job, they would work with the President to change the flaws in the bill. Republicans wanted the public mandate delayed, did they not? Why refuse?

Why refuse to do something about the border crisis? Because the Republican Congressional caucus has bought into the incredibly cynical self-fulfilling doom prophecy of Ronald Reagan, who said that government is the problem.

I don't need convincing that the Republican Party is a broadly cynical, irresponsible, and mean-spirited partner in government. That doesn't change the fact that I think respect for political process is important, and that elections having consequences does not mean that the candidate elected President should have the power to interpret and enforce law (or neglect to enforce as the case may be) as they see fit. Unfortunately, Republicans also won elections and control of the House of Representatives, a consequence of which was that their intransigence made it impossible for the ACA to be amended even in an area where apparently they and the White House were in agreement. That doesn't mean the President necessarily has the latitude to ignore a portion of the law- although it's possible he does, I acknowledge that a great deal of discretionary power is granted to the executive branch, I'm just not comfortable with dismissing the claim that he's overreached on the basis of liking what he did.

[Shryke]

Those are also options, along with appealing to the judiciary. That's why the judiciary exists.

On what basis is appeal to the judiciary supposed to be an option? When has it ever happened before? What standing does Congress have here?

You keep acting like this is normal, but it's not. It's fucking crazy, which is why everyone is shaking their heads at it. It's GOP silliness because they are too afraid to actually impeach, which is their actual power to go after the President if he's breaking the law.

[Mudguard]

On what basis is appeal to the judiciary supposed to be an option? When has it ever happened before? What standing does Congress have here?

You keep acting like this is normal, but it's not. It's fucking crazy, which is why everyone is shaking their heads at it. It's GOP silliness because they are too afraid to actually impeach, which is their actual power to go after the President if he's breaking the law.

Actually, I was wondering about how they would demonstrate standing. It's a good question. Generally, you need to show that you suffered some harm to establish standing. If they can't do that, or they can't find a single person who has suffered harm to file the lawsuit for them, then they are out of luck.

With respect to the employer mandate provision, they could file the lawsuit through a individual that works at a large company that does not provide health insurance. The argument would be that the employee lacks employer provided insurance because of the delay in the employer mandate provision. Or maybe you can file the lawsuit on behalf of US taxpayers, since the employer mandate provision was supposed to generate tens of billions in revenue that was going to be used to fund the ACA, and now the taxpayers are going to have to make up for the shortfall. None of these is a slam dunk though, so it's definitely going to be an issue.

Impeachment seems even more ridiculous to me in this situation. One, it would be a waste of time, since they don't have the votes in the Senate to convict. If they had the votes, I'm sure they would have done so long ago. Two, I don't think Obama's committed an impeachable offense yet. Most Republican's also agree with this, as far as I can tell. Only the fringe are demanding impeachment.

[Shryke]

Actually, I was wondering about how they would demonstrate standing. It's a good question. Generally, you need to show that you suffered some harm to establish standing. If they can't do that, or they can't find a single person who has suffered harm to file the lawsuit for them, then they are out of luck.

With respect to the employer mandate provision, they could file the lawsuit through a individual that works at a large company that does not provide health insurance. The argument would be that the employee lacks employer provided insurance because of the delay in the employer mandate provision. Or maybe you can file the lawsuit on behalf of US taxpayers, since the employer mandate provision was supposed to generate tens of billions in revenue that was going to be used to fund the ACA, and now the taxpayers are going to have to make up for the shortfall. None of these is a slam dunk though, so it's definitely going to be an issue.

Impeachment seems even more ridiculous to me in this situation. One, it would be a waste of time, since they don't have the votes in the Senate to convict. If they had the votes, I'm sure they would have done so long ago. Two, I don't think Obama's committed an impeachable offense yet. Most Republican's also agree with this, as far as I can tell. Only the fringe are demanding impeachment.

Right, so on what grounds is this lawsuit taking place? What's the point of it beyond grandstanding?

This is a nonsensical way to check executive power. Especially in light of Congress' other means of doing so.

If Congress can't get their shit together to do it another way, because they don't have the votes, then they don't get to check the executives power because they lack the consensus to do so. It's no different then passing legislation.

[lokisnow]

Shryke, don't you realize you answered your own question.

The Republicans don't just have Standing they have Grand Standing.

That's how slam dunk it is, it's fucking Grand.