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The Debate Over Obama's Legal Authority

BEGIN TRANSCRIPT

RUSH: I marvel, everybody's getting caught up now in the horse race, the political back-and-forth of this.  Did Obama have the power to do what he did.  F. Chuck Todd at NBC (paraphrasing), "Come on, everybody, pipe down.  Obama doesn't have the power to do what he did."  Well, what did he do?  You know what the Regime is saying?  By the way, let me go back to Upton for a moment.  This is the Republican bill being voted on today, and I guess it's gonna pass. (interruption) Oh, maybe not now?  Really?  The Democrats are pulling out of this thing?  A-ha.  A-ha.  Well, now, that is fascinating 'cause the Democrats, earlier in the week there were reportedly plenty of Democrats willing to sign on to the Upton bill, which basically just says what Obama said yesterday, but it doesn't. 

See, that's the thing.  The Regime was asked yesterday in the press conference -- I didn't learn any of this until I got home last night.  I wasn't able to actually look at and read -- that press conference was so loaded yesterday, it's a shame.  I wish I would have been able to figure it out during the program, 'cause it was loaded with stuff yesterday.  It was absolutely loaded and one of the things Obama was asked, "Well, what legal authority do you have to change the law?"  And they cited some obscure court case from the mid-eighties and the FDA, which said that the courts have held -- I'm paraphrasing here -- the courts have held that federal agencies can arbitrarily choose to enforce or not enforce certain things whenever they want to, all the way back to the eighties, and they simply cited that.  Now, that's really a brief, brief overview. 

So what the Regime is saying is, "We didn't change the law.  We didn't change anything.  We're just not gonna enforce one aspect of it for a year.  So don't start talking to me about throwing away the Constitution. We're not changing any law.  We're just not gonna enforce for one more year the fact that you gotta get rid of your plan."  Now, if we want we can go back and recover, talk about again the idea you were never going to be able to keep your plan.  I mean, the scope of that lie remains huge, fraudulent.  If the political winds were different, it would be impeachable. 

I mean, it's huge, that lie, the scope of that lie, the depth and extent of that fraud, because everybody knew you weren't gonna be able to keep your plan.  You couldn't.  I mean, existing plans had to go if Obamacare exists.  Obama's it's own law.  The plan that you had that you liked was illegal.  Your plan was illegal and everybody knew this.  Obama knew it.  It's in the Federal Register.  They knew that 93 million Americans were gonna lose their plans. 

So now where we are is the Regime is essentially saying, "We didn't change anything.  We're just like we stood down on the Defense of Marriage Act.  We decided we're not gonna defend that anymore.  We're not gonna defend aspects of the DREAM Act.  So we're just not gonna enforce this for a year, and there is nothing you can do about it."  And that's why Obama's threatening to veto Upton, because Upton would actually change the law.  And Obama didn't.  By his own answer to his question yesterday, by virtue of what I have since deduced, they didn't change any law here.  This is Obama not playing dictator.  "We're not gonna enforce the fact that you gotta get rid of your plan for one more year.  We're just gonna stand down."  And they cite again a court case from the eighties involving the FDA. 

Now, the FDA case involved -- it was a much, much smaller scope than this, and it's not certain that that precedent would hold in this case.  But again, all of that is irrelevant if nobody is going to take action against this.  Obama can do whatever he's gonna do if nobody's gonna stop him.  Any president can.  Any president can do whatever they want to do if nobody's gonna stand up to try stop him, including the media or the opposition party or public protests by the citizenry or what have you.  So Obama, trying to head people off at the pass, is saying, "I'm not gonna enforce it." 

Now, Jonathan Adler writes at the Volokh Conspiracy blog.  He says this: "In other words, the administration is not changing the law. It’s just announcing it will not enforce federal law (while simultaneously threatening to veto legislation that would authorize the step the President has decided to take)." That's the Upton bill.  "Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The president’s decision does not change relevant state laws either. 

"So insurers will still need to obtain approval from state insurance commissioners. This typically requires submitting rates and plan specifications for approval. This can take some time, and is disruptive because most insurance companies have already set their offerings for the next year. It’s no wonder that some insurance commissioners have already indicated they have no plans to approve non-compliant plans." Meaning your plan that you like, they're not gonna bring 'em back.  A lot of insurance companies are not gonna bring it back which is fine with Obama.  Obama doesn't care.  All Obama cares about is that you heard him say you get to keep your plan if you want it. 

It's now up to you to go through the hoops.  It's up to you to convince your insurance company, and as far as Obama's concerned you're gonna hate your insurance company when this is all over because they're gonna be the ones that don't let you have your plan back, and they heard Obama say that they can keep their plan for a year.  So now the insurance companies are the bad boys, and if the Republicans sign on to this, they can -- well, I don't know if it's unwittingly or who knows -- take some of the blame, depending on how they deal with this.  Then Adler at the Volokh Conspiracy -- he does other things besides write there -- and I've asked other sources about this.  I'm waiting on replies from other legal eagles. 

"Yet even if state commissioners approve the plans, they will still be illegal under federal law." And that's the point the Regime is making. They didn't change the law.  They're just not enforcing this aspect of Obamacare that requires you to say bye-bye to your plan. 
"Given this fact," given that your plan will still be illegal but with no jackbooted thug tracking you down to enforce it, "why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the [Affordable Care Act]? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy."

Let me take a break here, 'cause the time constraints of the programming format dictate it.
BREAK TRANSCRIPT

RUSH:  Wait a minute, folks, don't misunderstand me.  I'm not saying that Obama's free and clear here.  Make no mistake about something.  There is no legal authority, in the Constitution or in any other statute, there is no legal authority for a president to repeatedly, even routinely rewrite federal statutes, which he is guilty of times 10 in Obamacare with all of his waivers, all of the delays, all the selective application of the law to certain people, moving in and saying to members of Congress and their staff, "Guess what?  I'll make sure the taxpayers subsidize you through the Office of Personnel Management."  None of that's in the law.  He can't do that, but he can if nobody's gonna try to stop him. 

And by the same token, he cannot just willy-nilly refuse to enforce a law.  That's no different than writing a new one.  People are saying, "Oh, well, he's not changing the law?  Oh, okay, no biggie. Just not gonna enforce it?  Oh, okay."  It's the same thing as changing it.  He does not have the power to wave his dictator's magic wand, he doesn't have the constitutional authority, no legal authority to say, "I'm not gonna enforce that for a year, uh, uh, I'm just not gonna enforce it.  No penalty.  It's gonna be illegal.  You're still gonna be breaking the law, but I'm not gonna try catch you."  Can't do that.  Not in our system.  But everybody seems willing to accept that, since it isn't changing the law.  But it is.  Presidents, nobody has this kind of authority to pick and choose what parts of a law they're gonna enforce or not, or rewrite.
BREAK TRANSCRIPT

RUSH:  Well, I just got another legal opinion which tells me that I was incorrect moments ago when I said to you that a president cannot willy-nilly choose to enforce or not enforce aspects of a law.  I'm told by a legal person I respect that, for better or worse, the executive branch does have enforcement discretion and can refuse to enforce laws, even though enforcement discretion is supposed to be about allocation of resources, not rewriting statutes. 

Now, clearly there's nothing about resources in what Obama's doing.  He's not choosing to enforce the law saying you have to get rid of your plan because they need to do that in order to save money or anything like that.  He is doing it to rewrite the statute.  And that is in the spirit of the law kind of violation.  But he can still do it, according to the legal opinion I'm holding here in my formerly nicotine-stained fingers.  But then, you know, I remember back during the government shutdown, the Republicans wanted to pass legislation to open the Grand Canyon, for example, or they wanted to pass legislation to approve funding for the cancer hospital for sick kids.  And the Democrats said, "No, no, no, no, no, we're not gonna cherry-pick.  You can't cherry-pick what parts of government you're gonna fund and what parts you're not.  It's gotta be all or nothing." 

But for themselves, they reserve the right to enforce or not enforce parts of a law that they don't like.  And the Regime did announce, if you remember, that they were just gonna stop defending the Defense of Marriage Act.  So according to this legal beagle, Obama can do this.  The federal government does have the discretion to enforce or not enforce a law.  However, again, it is supposed to be based on whether or not they've got the means to enforce it, adequate personnel, resources.  This is not that.  He's choosing not to enforce this for purely political reasons. 

It doesn't change one thing, though, and this goes back to the real crux of this: shifting the blame for all this to the insurance agencies and overall industry because Obama has said that for the next year your old plan (paraphrasing), "If you can get it, even though it's substandard, if you can get it, you can have it, and we're not gonna prosecute you for having it.  It's still gonna be illegal 'cause I'm not changing the law, but you can have it if you want."  But he cannot make the insurance company give you that policy back, unless he does change the law, because the policy remains illegal. 

So now the real focus of this becomes the relationship between you, the individual, and the insurance company, 'cause the insurance company has no legal authority to issue policies that violate federal law, and Obamacare is the law of the land.  And since it hasn't been changed, your old policy is illegal.  They're just not gonna try to find you and prosecute you, they're not gonna punish you, they're not gonna enforce.  But it's still illegal.  So Obama can choose to refuse to enforce the law, but he cannot protect the insurance company from any civil lawsuits filed by people like you based on the legality of the policy. 

This is where it gets interesting.  Even though there is the provision or the legal ability for the Regime to choose not to enforce something, that doesn't give others the permission to break the law.  In other words, the insurance company cannot willfully do something in violation of the law and then say, "Obama said it was okay" when somebody comes after 'em in a civil lawsuit.  That defense doesn't fly.  So Obama is not granting anybody immunity here, particularly the insurance companies.  What he's doing is shifting the blame to the insurance company, because with the low-information -- this is the roll of the dice.  Now, I don't know this is gonna fly anymore.  I really don't. Two years ago this would have been a slam dunk and the insurance companies may as well close up shop and go away. 

I don't know that he's gonna get away with it as easily anymore.  But what he's trying to do here is go on television and tell everybody (Obama impression), "You know what, I didn't know it was this bad.  But I know how you love your plan, even though it's not very good, if you like it, you're going to be able to keep it for a year."  Okay, so now you're all excited, you get to keep your plan, you're so happy.  Now you go out, you try to get it reinstated and you run up against these evil insurance companies who are gonna tell you, "We can't.  The plan's gone.  The law says that plan was illegal.  We're not gonna give you something that was illegal." 

You say to the insurance company, "But Obama said you could." 

"It's not gonna help us in court  if something goes wrong. The Obama-said-we-could-do-it defense isn't gonna fly."  And so you end up mad at your insurance company, not at Obama.  This whole thing yesterday was purely political to help the Democrats in 2014.  Look at the media last night and today wringing their hands, so worried about how Obama's goofing up and how Obama seems incoherent and rambling, was a bumbling, fumbling. It wan an embarrassing press conference. It was painful to watch.  It was the Limbaugh Theorem on display! 

You know, folks, when I got home yesterday afternoon, last night, and I had a chance, that press conference was on at the same time -- I now know why he started the thing at noon.  He started the thing at noon so that I wouldn't know anything about it 'til the program was over.  That thing was loaded.  If I woulda had known what he had said, I coulda spent at least a hour and a half yesterday properly positioning this and properly analyzing it, but I didn't 'cause I was doing the program at the same time.  It's one of those frustrating things.  There's no way I can listen to his press conference or even read the transcript while I'm doing the program. 

Everybody is out there saying he's rumbling, bumbling, painful to watch, gee, Obama. They've all got this idea he's the smartest guy in the room and he came off as an ignoramus.  You gotta remember who his audience was yesterday for this.  The low-information voter.  And as far as they're concerned, all Obama care's about is they continue to think he's fighting for 'em.  He didn't know that website was bad.  He didn't know it wasn't working.  In fact, this is classic.  He used his ignorance as an illustration of his brilliance. If I have this right, he said, "Nobody told me that the website wasn't ready, even a week into it.  Do you think I'm that stupid?  You think I'm so stupid?  I'm not stupid enough to go out and start touting this thing as the greatest thing since sliced bread if I had known it was a mess and wasn't working." 

It's stunning. The guy uses his ignorance as a sign of his brilliance. Or not a sign, but a way to explain, actually cement the idea that he's brilliant.  "Hey, I'm so smart, you know, I'm not that dumb.  I'm smart enough to know not to go out and sell this thing if it isn't working.  Nobody told me."  And yet over here everybody thinks this guy is the smartest, the most connected, the most in touch, the most engaged president we've ever had.  And yet every day, he doesn't know anything about what's going on and gets away with that.  And now he's turned not knowing anything into a sign of how smart he is. 

Okay.  I gotta take another brief time-out. 

We got other things out there today besides this, but I wanted to touch on this because everybody's been asking me, "Why would he say he's gonna veto --" In fact, Eric Cantor of the Republican House leadership sent a tweet out yesterday saying (paraphrasing), "The president just said that he's gonna do what our bill is gonna do, but yet he said he's gonna veto our bill."  Like his feelings hurt.  I don't know, you know, you can't read hurt feelings in a tweet, so I don't know.  That's just the way I interpreted it.  And a lot of people, "Why would he veto something that --" and precisely because an act of Congress, that's legislation, if he signs that bill, then he can't say he's not changing the law.  Which is what he's hanging his hat on.  "I'm not changing anything.  I'm just not gonna enforce something."

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