As Igor Volsky reported this weekend, Texas Gov. Rick Perry (R) falsely claimed on Saturday that he would have the power to unilaterally halt the Affordable Care Act by executive order if he is elected president — a claim so radical that even Tea Party Attorney General Ken Cuccinelli (R-VA) was skeptical. Perpetual second-place GOP presidential candidate Mitt Romney has long claimed the illegal authority to allow states to simply opt out of health reform. And current GOP frontrunner Newt Gingrich has gone even further — claiming he has the power to simply ignore Supreme Court decisions he disagrees with.
Simply put, this is lawlessness. The Constitution gives the president the power to veto bills immediately after they pass Congress. It does not allow the president to retroactively veto a law years after it is signed — and it certainly does not give him the power to thumb his nose at the rule of law. Sadly, however, this lawless belief that presidents can simply ignore laws they disagree with is not simply something three presidential candidates dreamed up to pander to GOP primary voters — it has also begun to infect the federal judiciary. Consider a dissenting opinion D.C. Circuit Judge Brett Kavanaugh recently wrote in a case upholding the Affordable Care Act:
Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. Similarly, Congress may repeal or decline to pass a statute based on its own constitutional interpretation even if the courts have (or would have) upheld the statute as constitutional. This power does not work in reverse, either for the President or Congress. In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution.
To Kavanaugh’s credit, he rejects Gingrich’s authoritarian position that the president can simply ignore decisions striking down unconstitutional acts — but his position is strikingly similar to the view advocated by Romney and Perry. Essentially, Kavanaugh argues, the president does have the power to retroactively veto a law simply by calling it “unconstitutional.” Nor is Kavanaugh — a former Supreme Court clerk who is widely viewed as a likely Supreme Court nominee in a GOP administration — alone in this view. He cites an opinion by Justice Scalia, claiming that “the President possesses ‘the power to veto encroaching laws or even to disregard them when they are unconstitutional.’”
The constitutional argument against the Affordable Care Act, in the words of conservative Judge Laurence Silberman, “cannot find real support…in either the text of the Constitution or Supreme Court precedent.” It is likely to be upheld by the Supreme Court next year. Nevertheless, the lawless suggestions of Romney, Perry, Scalia, and Kavanaugh present a looming threat to this and all other laws that Republicans disagree with. Health reform could win the day in Court, take full effect in President Obama’s second term — only to have a power-hungry president try to retroactively veto it many years later.