Malcolm Rivera
Former US President Barack Obama has been accused of violating the US Constitution on numerous occasions, with some arguing that he posed a danger to the constitutional system. One of the main concerns was his administration's pattern of unilateral executive action, which some believed undermined the system of checks and balances established by the Framers. Obama's actions on immigration, in particular, his granting of work and residence permits to Dreamers, were seen as an overreach of executive authority and a threat to the separation of powers. Other alleged violations include delays in implementing aspects of Obamacare, outlandish Supreme Court arguments, and the targeting of political organisations by the IRS.
| Characteristics | Values |
|---|---|
| Delay of Obamacare's out-of-pocket caps | Delaying the implementation of the law that limits how much people spend on their insurance |
| Delay of Obamacare's employer mandate | Delaying the requirement for employers of at least 50 people to provide complying insurance or pay a fine |
| Outlandish Supreme Court arguments | Between Jan 2012 and June 2013, the Supreme Court rejected the Justice Department's extreme positions 9 times |
| Violating the separation of powers | The "We Can't Wait" initiative, where the president took action without the support of Congress |
| Abuse of executive action | Granting work and residence permits to the "Dreamers", young people brought into the country illegally as children |
| Mass amnesty | Threatening to implement a mass amnesty from immigration laws by executive fiat |
| Unconstitutional executive action | Failing to discharge the constitutional duty to "take Care that the Laws be faithfully executed" |
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What You'll Learn
Delaying Obamacare's out-of-pocket caps
In 2013, the Obama administration delayed the implementation of a provision in the Affordable Care Act (also known as Obamacare) that would have capped out-of-pocket costs for some health insurance plans. This delay was intended to give insurers and employers more time to find ways to merge separate out-of-pocket caps for different types of coverage, such as medical care and drugs, into a single cap.
This decision sparked criticism from consumer groups, who argued that the delay could result in patients facing higher out-of-pocket costs, particularly those with chronic diseases and disabilities. They asserted that the technology existed to combine the separate administrative functions, eliminating the need for an extension. In response, an administration official stated that the delay was necessary to balance the interests of consumers with the concerns of health plan sponsors and carriers, who had expressed concerns about the compatibility of their computer systems with the new requirements.
The delay in cost caps also fuelled Republican efforts to discredit and defund Obamacare. Speaker John Boehner (R-Ohio) criticised the move, stating that it gave a break to big businesses while individuals and families remained stuck under the law's mandates. He called on the Senate to take up the House measure delaying the individual mandate.
The Obama administration maintained that the law's implementation was on schedule and defended its healthcare reforms, stating that Republicans had presented no viable alternative. The delay in capping out-of-pocket costs represented a setback in the administration's efforts to implement Obamacare, highlighting the challenges in rolling out the healthcare law amidst public opposition and misunderstandings.
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Delaying Obamacare's employer mandate
One of the criticisms of the Obama administration is that it delayed the employer mandate in the Affordable Care Act (ACA) or Obamacare. The Obama administration delayed the employer mandate for a year, meaning that employers would not be penalised before 2015.
The employer mandate has been described as ""poorly designed". It has been argued that it does not ask enough of employers, creates bad incentives, does little to improve the overall efficiency of health reform, and is difficult to predict in terms of which firms it will impact.
Some critics have claimed that the mandate has led to a shift towards part-time work, with employers cutting hours. However, others have argued that this is not the case and that there is no discernible shift towards part-time work. They argue that delaying the mandate makes sense, as it is flawed and needs to be fixed.
The individual mandate, on the other hand, has been praised for making health reform more efficient and effective. While the employer mandate has been delayed, there has been no indication that the individual mandate will also be delayed. The Obama administration's decision to delay the employer mandate has been a topic of discussion and debate, with some arguing that it highlights the flaws in the mandate while others defend the decision as necessary to improve the mandate's design and effectiveness.
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IRS targeting conservative groups
In 2013, the United States Internal Revenue Service (IRS), under the Obama administration, revealed that it had selected political groups applying for tax-exempt status for intensive scrutiny based on their names or political themes. This scrutiny disproportionately affected conservative groups, with terms like "Tea Party" in their names. This revelation led to widespread condemnation of the IRS and triggered multiple investigations, including a Federal Bureau of Investigation (FBI) criminal probe. While there was no evidence of "enemy hunting", the controversy highlighted the appearance of partisan politics in IRS decision-making, which was constitutionally troubling to many.
The Lois Lerner scandal, as it came to be known, was Exhibit A for the Republican Party of Obama administration overreach and Democrats weaponizing the IRS to target conservative groups. This belief was supported by reports that initially described the selected groups as nearly exclusively conservative. However, an exhaustive report released by the Treasury Department's Inspector General in 2017 found that from 2004 to 2013, the IRS used both conservative and liberal keywords to choose targets for further scrutiny. This report blunted claims that the issue was an Obama-era partisan scandal, as it indicated that both conservative and progressive startup non-profits were targeted equally.
Despite this finding, the Republican majority on the House Oversight Committee issued a report concluding that while some liberal groups were selected for additional review, the scrutiny conservative groups received was greater and amounted to targeting. This report was criticized by the committee's Democratic minority, which stated that it ignored evidence of the IRS's use of keywords to identify groups on both sides of the political spectrum. The controversy surrounding the IRS's practices resulted in protests by members of the Tea Party and calls for accountability and the removal of those involved from their positions.
The IRS's actions under the Obama administration raised concerns about the misuse of power and the potential for partisan politics to influence decision-making in federal agencies. While there was no evidence of criminal wrongdoing, the controversy highlighted the need for clear checks and balances to prevent even the appearance of partisanship in the IRS's operations. This incident served as a reminder of the importance of maintaining non-partisanship in governmental processes and ensuring that power is not abused to target political opponents.
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Outlandish Supreme Court arguments
During his presidency, Barack Obama was accused of making outlandish arguments in the Supreme Court. Between January 2012 and June 2013, the Supreme Court unanimously rejected the Justice Department's extreme positions nine times. These cases covered a range of issues, including criminal procedure, property rights, religious liberty, immigration, securities regulation, and tax law. The only common thread was the government's stance that federal power is virtually unlimited.
One of Obama's key achievements was to restore the Constitution to the centre of public discourse. Ironically, he did this not by highlighting the constitutional aspects of his agenda but by apparently violating the constraints of the founding document. Obama was particularly frustrated by the separation of powers, which prevented him from "fundamentally transforming" the country without congressional approval.
In its first term, the Obama administration launched the "'We Can't Wait' initiative", with senior aide Dan Pfeiffer explaining that "when Congress won't act, this president will". Obama himself stated that he would not allow "gridlock, inaction, or willful indifference" to stand in his way.
Obama's critics pointed to several instances where he allegedly abused his executive authority and threatened the system of checks and balances established by the Framers. One notable example was his plan to grant mass amnesty from immigration laws by executive fiat, without the support of Congress or the American people. This led to accusations that Obama was overstepping his constitutional bounds and failing to uphold his duty to "preserve, protect, and defend" the Constitution.
Another instance of Obama's outlandish Supreme Court arguments involved the IRS. In 2010, the IRS compiled a "be on the lookout" (BOLO) list to target organizations engaged in political activities. The list included terms such as "Tea Party," "Patriots," and "Israel," as well as activities like criticizing the government, educating about the Constitution, or challenging Obamacare. This targeting continued through May 2013.
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Executive action on immigration
On November 20, 2014, President Obama announced a series of executive actions on immigration. The actions were designed to crack down on illegal immigration at the border, prioritize the deportation of felons over families, and require certain undocumented immigrants to pass a criminal background check and pay taxes to remain in the US without fear of deportation.
The executive actions were an attempt to fix the "broken immigration system" and hold almost 5 million undocumented immigrants accountable. The actions focused on three critical elements:
- Cracking Down on Illegal Immigration: Increasing the chances of catching and sending back those crossing the border illegally, and centralizing border security command-and-control to continue to reduce illegal immigration.
- Deporting Felons, Not Families: Placing anyone suspected of terrorism, violent crimes, gang membership, or recent border crossing at the top of the deportation priority list.
- Accountability: Requiring criminal background checks and taxes to be paid by undocumented immigrants.
The Obama Administration had already increased the removal of criminals by more than 80% and had more than doubled border fencing, surveillance systems, and border patrol agents since 2008, cutting illegal border crossings by more than half. The executive actions also expanded the Deferred Action for Childhood Arrivals (DACA) program, allowing people of any current age who entered the US before the age of 16 and had lived there continuously since January 1, 2010, to apply. The period of DACA and work authorization was also extended from two years to three.
Other actions included promoting citizenship education and public awareness for lawful permanent residents and allowing parents of US citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided they met certain conditions. The Department of Labor also expanded and strengthened immigration options for victims of crimes and trafficking who cooperated with investigations.
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Frequently asked questions
It is unclear how many times Barack Obama has circumvented the constitution as this is a matter of political opinion. However, in 2013, Forbes compiled a list of Obama's top 10 constitutional violations of 2013.
The list includes delaying Obamacare's out-of-pocket caps and employer mandate, granting de facto green cards, outlandish Supreme Court arguments, and more.
Obama's violations have been described as a "serious blow to the system of checks and balances established by the Framers". Liberal law professor, Andrew M. Koppelman, testified that Obama's actions threatened the constitutional system.
