Seems that the White House has looked at the executive powers of the president closely and have decided that they will apply the law whichever way they choose. Can they do this? Well apparently so:
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Chicago lawyer Joseph A Morris, explains why this is impossible (to force the White House to enforce the law) riffing off Professor Adler's blog at Volokh Conspiracy
"It seems to me that, as a general proposition, the Executive has great discretion in deciding whether or not to refrain from enforcing law (as in deciding whether or not to prosecute any particular crime).
(As an aside, there is a conceptual nexus here to the Second Amendment debate. Governments -- Federal and State -- have authority to protect me from crime, and they have authority to prosecute people who commit crimes against me. But they have has no duty, enforceable by me, to protect me from crime, nor a duty, enforceable by me, to undertake any particular prosecution. There are exceptions, I suppose, as when government systematically refuses to protect me because of my race while it protects everyone of another race; or if I become a victim of crime because government somehow wrongfully put me in harm's way; but my remedies, even then, are likely to be civil damages rather than injunctions commanding government to protect or to prosecute. The absence of a cognizable "duty to protect" coupled with the practical inability to protect in many places and circumstances makes a compelling case in the interests of self-protection alone for the vindication of Second Amendment rights.)
Thus the remedy for the Executive's exercise of discretion not to enforce law is not judicial but political, that is, at the polls or by impeachment. [snip] Rather than impeaching Mr. Obama for refraining from enforcing ObamaCare, we should confer upon him a medal for admitting that his law is improvident, unenforceable, and, ineluctably, stupid and injurious to the people.
That medal should be conferred visibly, loudly, and repeatedly in public discourse from now through the elections of 2014 and probably all the way to 2016, for it is at the polls that the best, surest, and most resounding remedy will be found.
I call attention to the reference to an observation made by Randy Barnett that appears at the very end of Adler's post on VC [ed: Volokh Conspiracy]. Mr. Obama himself sets the precedent for a decision by a future President not to enforce ObamaCare in gross.
[snip] I observe that, in the absence of the conferment by a statute of some cognizable right that the statute makes assertable against a person (or entity) with a cognizable duty to yield to or satisfy the right (be it the government itself or a third party), it's hard to see how anyone has standing to seek judicial compulsion of executive action. And that's probably a good thing. If it is true that, in the real world, not every law can be enforced and not all laws can be enforced at all times, then someone has to decide which laws get enforced and which laws don't, and when. That, it seems to me, is a decision soundly committed by the Constitution to the Executive and not to the Legislature or the Judiciary. That the Legislature doesn't get to enforce the laws it makes is a check on the legislative power; that the Judiciary doesn't get to pick which cases come before it is a check on the judicial power. The Executive's power of inaction is thus a legitimate check on the powers of the other two branches, and the proper venue for review of the exercise of that is not the courtroom but the debating chamber or the hustings."
Read more: Articles: White House Down: Obama Version
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"It seems to me that, as a general proposition, the Executive has great discretion in deciding whether or not to refrain from enforcing law (as in deciding whether or not to prosecute any particular crime).
(As an aside, there is a conceptual nexus here to the Second Amendment debate. Governments -- Federal and State -- have authority to protect me from crime, and they have authority to prosecute people who commit crimes against me. But they have has no duty, enforceable by me, to protect me from crime, nor a duty, enforceable by me, to undertake any particular prosecution. There are exceptions, I suppose, as when government systematically refuses to protect me because of my race while it protects everyone of another race; or if I become a victim of crime because government somehow wrongfully put me in harm's way; but my remedies, even then, are likely to be civil damages rather than injunctions commanding government to protect or to prosecute. The absence of a cognizable "duty to protect" coupled with the practical inability to protect in many places and circumstances makes a compelling case in the interests of self-protection alone for the vindication of Second Amendment rights.)
Thus the remedy for the Executive's exercise of discretion not to enforce law is not judicial but political, that is, at the polls or by impeachment. [snip] Rather than impeaching Mr. Obama for refraining from enforcing ObamaCare, we should confer upon him a medal for admitting that his law is improvident, unenforceable, and, ineluctably, stupid and injurious to the people.
That medal should be conferred visibly, loudly, and repeatedly in public discourse from now through the elections of 2014 and probably all the way to 2016, for it is at the polls that the best, surest, and most resounding remedy will be found.
I call attention to the reference to an observation made by Randy Barnett that appears at the very end of Adler's post on VC [ed: Volokh Conspiracy]. Mr. Obama himself sets the precedent for a decision by a future President not to enforce ObamaCare in gross.
[snip] I observe that, in the absence of the conferment by a statute of some cognizable right that the statute makes assertable against a person (or entity) with a cognizable duty to yield to or satisfy the right (be it the government itself or a third party), it's hard to see how anyone has standing to seek judicial compulsion of executive action. And that's probably a good thing. If it is true that, in the real world, not every law can be enforced and not all laws can be enforced at all times, then someone has to decide which laws get enforced and which laws don't, and when. That, it seems to me, is a decision soundly committed by the Constitution to the Executive and not to the Legislature or the Judiciary. That the Legislature doesn't get to enforce the laws it makes is a check on the legislative power; that the Judiciary doesn't get to pick which cases come before it is a check on the judicial power. The Executive's power of inaction is thus a legitimate check on the powers of the other two branches, and the proper venue for review of the exercise of that is not the courtroom but the debating chamber or the hustings."
Read more: Articles: White House Down: Obama Version
Follow us: [MENTION=20123]American[/MENTION]Thinker on Twitter | AmericanThinker on Facebook
Links
Articles: White House Down: Obama Version
The Volokh Conspiracy » The Implications of Delaying the Employer Mandate
