7/31/2013 @ 8:00AM
Henry I. Miller
forbes.com


President Barack Obama (Image credit: Getty Images via @daylife)

Stanford Law School Professor Michael McConnell wrote in the Wall Street Journal recently that President Obama’s decision to suspend the employer mandate of the Affordable Care Act “raises grave concerns about his understanding of the role of the executive in our system of government.” Specifically, Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed,” and McConnell emphasizes that “this is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”

According to McConnell, although the president may refuse to enforce laws he believes are unconstitutional, the Justice Department’s Office of Legal Counsel (which provides opinions to the president on such issues) “has always insisted that the president has no authority, as one such memo put it in 1990, to ‘refuse to enforce a statute he opposes for policy reasons.’” And yet McConnell offers examples of the president having done so repeatedly:

“In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.”

The president and his minions have not only violated the Constitution by declining to implement certain duly enacted laws at all, or by unilaterally distorting congressional mandates, as in the examples above, but they have also interfered inappropriately with the application of various federal laws. This was the lede of a June 13 article in the New York Times, for example:

“When President Obama proclaimed that those who commit sexual assault in the military should be ‘prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,’ it had an effect he did not intend: muddying legal cases across the country. In at least a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that Mr. Obama’s words as commander in chief amounted to ‘unlawful command influence,’ tainting trials as a result. Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault.”

The Times cited a number of cases that have been dismissed or otherwise tainted by the president’s imprudent remarks. (Tell the victims who have been denied justice that this is a phony scandal.)

At other agencies and in various ways, for political reasons the Obama White House has inappropriately or illegally tampered with federal agencies’ prescribed procedures and requirements for the evaluation and approval of individual government-regulated products. Consider, for example, the feds’ treatment of an Atlantic salmon that reaches maturity twice as rapidly as its wild cohorts. The genetic changes – the addition to the genome of a growth hormone gene from the Chinook salmon and a regulatory DNA sequence from the ocean pout — confer no detectable difference in the fish’s appearance, ultimate size, taste or nutritional value; it just grows faster, a tremendous economic advantage to those farming the fish in a closed water system.

The availability of such a salmon would also be a tremendous boon to consumers seeking low-fat and affordable options for sources of protein, especially in the face of food price inflation and the obesity epidemic. (Fillets of wild salmon at my local Whole Foods are a whopping $19.99 per pound.)

The FDA’s Center for Veterinary Medicine subjects such genetically engineered animals to the same burdensome pre-market approval procedures and regulations as veterinary drugs such as pain relievers and anti-flea medicines. After a several years-long evaluation, regulators concluded that the AquAdvantage salmon has no detectable differences and that it “is as safe as food from conventional Atlantic salmon.” And because the fish will all be sterile females and farmed inland, there is negligible possibility of any sort of “genetic contamination” of the gene pool or other environmental effects. (Even in a worst-case scenario, these fish are maladapted to compete in the wild.)

When it appeared in April 2012 that FDA was finally ready to publish its Environmental Assessment, the last necessary hurdle before approving the salmon, the decision-making was mysteriously expropriated by the White House. The review process vanished from sight until December, when the FDA was finally permitted to publish the Environmental Assessment (the unsurprising verdict: “no significant impact”), which should then have gone out for a brief period of public comment. (The comment period, which was extended, ended on April 26, but the salmon still has not been approved.)

The reasons for the delay in FDA’s publishing the needed Environmental Assessment in April 2012 were revealed by the brilliant investigative reporting of science writer Jon Entine. He related that the White House interference “came after discussions late last spring [2012] between Health and Human Services Secretary Kathleen Sebelius’ office and officials linked to Valerie Jarrett at the Executive Office [of the President], who were debating the political implications of approving the [genetically modified] salmon. Genetically modified plants and animals are controversial among the president’s political base, which was thought critical to his reelection efforts during a low point in the president’s popularity.”

The president’s advisers may know nothing about food science but they understand that airy-fairy food activism is particularly rabid in blue states such as New York, Massachusetts, Vermont, Oregon and California. Their inappropriate interference with a science-based FDA review illustrates yet again the Obama administration’s disregard for due process, transparency and innovation, to say nothing of failing to execute the Federal Food, Drug & Cosmetic Act, which requires that the Health and Human Services secretary approve the AquaBounty application within six months after compliance with Section 512. Given that the FDA informed the company a year and a half ago that every major component of its application had been successfully addressed, this delay in approval is another example of the president failing to execute the law – in other words, to discharge his duty.

These cynical machinations by the Obama administration should elicit the same sort of outrage from scholars, the media and the public that we’ve seen over the excesses and abuses by the IRS, EPA, Department of Justice, Immigration and Customs Enforcement and other agencies. Corporate entities and individuals alike deserve fair, impartial and transparent treatment from the government, but they aren’t getting it.

We are left with the realization that the nation is led by a careless, callow politician who acts impulsively and with disregard for the rule of law.

http://www.forbes.com/sites/henrymil...-constitution/