Jewish World Review April 18, 2011 / 14 Nissan, 5771
By Jack Kelly
http://www.JewishWorldReview.com | When Thomas Jefferson wrote in the Declaration of Independence "all men are created equal," he knew this wasn't literally true. He knew we are tall and short, fat and thin, smart and stupid, industrious and lazy, rich and poor, male and female, black and white, brown, yellow and red.
What Mr. Jefferson meant is that we are entitled to equal justice under law. Equality before the law has been the cornerstone of our democracy. But maybe not for much longer.
The Department of Health and Human Services has so far granted hundreds of waivers to Obamacare. Most have gone to labor unions, companies and other organizations which support the administration.
The law Congress passed contains no language authorizing anyone in the executive branch to grant waivers. The Obama administration claims the authority is implied by the broad powers the legislation grants to the HHS secretary. The Founding Fathers beg to differ.
Prior to the "Glorious Revolution" of 1688 (in which James II was deposed in favor of William of Orange), English kings asserted the right to exempt favored subjects from the provisions of a particular law (dispensations), or to suspend the law entirely. Kings claimed this because of their "divine right" to rule as they pleased, Parliament be damned.
This was not a popular view with Parliament. James II was deposed in large part because of his many dispensations. The English Declaration of Rights, issued after the Glorious Revolution, said what we call waivers today are illegal unless they are authorized by statute.
Our Constitution permits Congress to delegate to the executive branch the power to suspend a law for everyone in some cases, but makes no provision for waivers for some but not for others similarly situated. Columbia law professor Philip Hamburger explained why in the National Review:
"The dispensing power was not a power to make laws, nor even a power to repeal laws, but rather a power to relieve individuals of their obligation under a law that remained in effect. It was thus a power not exercised through or under the law, but above it."
Government by waiver undermines liberty, wrote law professor Richard Epstein in National Affairs.
"The fate of our rights and liberties is left to the discretion of individuals; we are therefore governed by men, not laws. It was this exact circumstance our system of government was designed to avoid. As James Madison noted in Federalist No. 10, 'enlightened statesmen will not always be at the helm.' The problem of government by waiver shows just how far we have strayed from the intentions of those who created our system of government -- and how we risk betraying their hope that we might preserve it."
It isn't only on Obamacare waivers where the law is being selectively enforced.
Christopher Coates was chief of the Voting Section in the Civil Rights Division of the Department of Justice. He testified that the Obama Justice Department does not prosecute violations of the Voting Rights Act if the victims are white.
Federal agencies are required under the Freedom of Information Act to provide copies of documents to citizens who request them. A review of FOIA requests made during the Obama administration by Pajamas Media indicated that requests by liberals get filled promptly while requests by conservatives are delayed or ignored. The administration even has withheld from committees of Congress information they are entitled by law to have.
In February, a federal judge in Louisiana held the Interior Department in contempt for re-imposing a deep water oil drilling plan after the judge had struck down an earlier version of the moratorium.
"Such dismissive conduct, viewed in tandem with the reimposition of a second blanket and substantially identical moratorium, and in light of the national importance of this case, provides this court with clear and convincing evidence of the government's contempt of this court's preliminary injunction order," said Judge Martin Feldman.
Subsequently, the Interior Department claimed to have lifted the moratorium, but is still dragging its feet on issuing new licenses for drilling.
For going to war in Libya without first seeking approval from Congress, the Atlantic's Andrew Sullivan, a former admirer, has dubbed Mr. Obama "King Barack I."
The moniker fits. Barack Obama dispenses with the rule of law when it gets in the way of what he wants. For President Scofflaw, it's all about power.
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JWR contributor Jack Kelly, a former Marine and Green Beret, was a deputy assistant secretary of the Air Force in the Reagan administration.
© 2009, Jack Kelly