Articles I, II, and III of the Constitution describe the roles of the legislative, executive, and judiciary branches of the federal government. It’s clear that the Founders intended for Congress to make the laws, the administration to enforce the laws, and the courts to interpret the laws.  Although this doctrine of Separation of Powers sounds simple, it’s not. The administrative branch holds great power to promulgate regulations and make executive decisions (orders and actions) that wield the force of law, and today, many fear that this power is being abused.

The Affordable Care Act, or ObamaCare, is the ultimate recent example. The text of this comprehensive health reform law occupies between 2,000 and 3,000 pages of paper, depending on font size. The regulations promulgated pursuant to this Act would require 20,000 pages of paper. This is largely because the language of the law itself delegates many determinations to the Department of Health and Human Services. It seems Congress makes the law, but the Administration makes the rules.

But with regard to ObamaCare, the Administration has gone far beyond offering regulatory guidance that adds clarity or specificity to the law. On many occasions, administrative agencies have made changes to the law, some of which may not stand up to constitutional scrutiny in light of the Separation of Powers.

According to the Galen Institute, the executive branch has altered ObamaCare 30 times. A few of these actions have elicited a legal response from government watchdogs, taxpayers, and Congress. These lawsuits are examples of our system of checks and balances at work.

In one of these cases, U.S. House v. Burwell, one of the three branches (the judiciary) ironically will have to decide whether the constitutional lines that separate the powers of the other two (Congress and the Executive) will remain relevant.

Many of the administrative changes to ObamaCare have been implementation delays, including the enforcement of the employer mandate. In short, this mandate requires employers of 50 or more workers to provide health insurance or pay a penalty.  ObamaCare says clearly, in the relevant Section 1513(d), “the amendments made by this section shall apply to months beginning after December 31, 2013.” But twice the Administration has acted unilaterally to change this enforcement date.

The delay of the employer mandate is one claim in the suit, which also points to unconstitutional “offset” payments that the federal government has been making to insurance companies without Congressional appropriation. The House voted to file this lawsuit against executive overreach under the leadership of Speaker John Boehner. The defendants are the Department of Health and Humans Services and Secretary Sylvia Burwell and Department of the Treasury and Secretary Jack Lew.

In this case, the legislative branch is alleging that it has been injured by the unconstitutional actions of the defendants, which usurp the House’s constitutional authority to make legislation and to appropriate public funds.

Although it is unprecedented for the U.S. House – as a body – to file suit against the executive branch, the plaintiff describes the actions of the Obama Administration as extremely troubling and deserving of a response. From the complaint:

“The Administration has made no secret of its willingness, notwithstanding Article I of the Constitution, to act without Congress when Congress declines to enact laws that the Administration desires. Not only is there no license for the Administration to “go it alone” in our system, but such unilateral action is directly barred by Article I. Despite such fundamental constitutional limitations, the Administration repeatedly has abused its power by using executive action as a substitute for legislation.”

As the Supreme Court wrote recently in a different case, Burrage v. United States, “The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accord with good policy.’” Replace a few key words and the same could be said of the role of the executive branch: Its role is to enforce the statute as it is written, regardless of what administration officials believe to be the best policy. To change a policy, they should seek a legislative change from Congress (and accept Congress’s authority when it chooses not to enact such a change).

Abraham Lincoln said, “The best way to get a bad law repealed is to enforce it strictly.” Enforcing the law is the purview of the executive branch. But in the case of ObamaCare or the Affordable Care Act, the administration is loathe to enforce the law strictly as it was written, because doing so might make the law even less popular than it has been during the last five years. That’s the heart of the issue here.

Even so, it is not the prerogative of the executive branch to pick and choose among the sections and clauses of the laws, and to selectively implement laws on its own timeline. This sets a bad precedent in favor of political expediency. But those who would put more and greater power in the executive branch should be warned: What one president does by executive order, the next president might undo the same way.

This was not the way our system was meant to work: Separated powers and a system of checks and balances are meant to ensure that our government follows the rule of law, not the rule of man by fiat. This Separation of Powers may keep the three branches from superseding each other, but this design is ultimately in place for the protection of the people. A divided government is a limited one, and a limited government allows for maximum individual freedom and human flourishing.

Hadley Heath Manning is director of health policy at the Independent Women’s Forum.

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5 replies
  1. Vikki Arneault
    Vikki Arneault says:

    It is about time there is push back against this aggression. If our elected officials won’t due it the populace will soon become completely oppressed like the Jews where in Nazi Germany. Only hopefully Americans will exercise their 2nd amendment rights to defend themselves.

  2. Ralph Howarth
    Ralph Howarth says:

    When an administration drafts a policy, a gaggle of lawyers is employed to devise a tortured, voluminous document on all the ways the policy con get around constitutional barriers, bribe states with funding, censor private behavior with tax fines or tax credit inducements, and contingency plans. This may happen before any laws or regulations are passed.

  3. Allan Hampton
    Allan Hampton says:

    Rules are not laws, only Congress is delegated the power to legislate, make laws; and Congress cannot constitutionally delegate (farm out) its delegated powers, doing so is amending the Constitution and Congress cannot amend the Constitution, see Article V.

    YES – it is unprecedented for the U.S. House – as a body – to file suit against the executive branch. And I think unconstitutional. An Official that exercises a power not delegated to them by the Constitution usurps that power. In that case the House is required to impeach the usurper.

    ” The Administration has made no secret of its willingness, notwithstanding Article I of the Constitution, to act without Congress when Congress declines to enact laws that the Administration desires.” – Is a usurpation of power, the House in obligated to impeach an usurper.

    Citizens have the power to not reelect Incumbent Representatives every two years. And as Jurors have the power to forbid the court unjustly punish the accused.

  4. Paul Hodson
    Paul Hodson says:

    As someone who is involved in a lobbying effort, referencing an actual provision in the Constitution, I often hear conservative opposition that states “they just need to follow the Constitution”.

    I’ve looked. Nowhere does the Constitution provide for one branch to sue another. To the best of my knowledge, this tactic is not mentioned in Madison’s notes on the Constitutional Convention, or in the Federalist Papers, or in any Framer’s notes or correspondence. The Constitution does provide two enumerated powers to Congress:

    1) impeachment power. Our Congress, and quite probably our nation, does not have the stomach for this fight.

    2) the power of the purse. Madison, in Federalist #58, states “(t)his power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

    In January 2011, Representative Michele Bachmann, working with Representative Steve King, proposed using the power of the purse to defund the ACA. She foolishly thought she could get House GOP leadership to support these efforts, based on John Boehner’s September 2010 statement “I am committed to doing everything that I can do and our team can do to prevent Obamacare from being implemented… Now, when I say everything, I mean everything.”

    I guess everything, to John Boehner, only means suing the President. It doesn’t include using provisions actually in the Constitution. Bachmann was vilified for her position. Senator Ted Cruz took the same approach in September of 2013, rallying, if only temporarily, the House to use the power of the purse as political leverage. For his actions, Senator Cruz was described as a “wacko bird” by the 2008 GOP Presidential nominee.

    The 2012 GOP Presidential nominee promised to grant waivers to all 50 states concerning the ACA. Terrific, the last two “conservative” GOP Presidential nominees had no interest in supporting the Constitution; one decried a fellow member for invoking an enumerated power, and the other publicly campaigned to violate the oath of the President by refusing to enforce a law.

    I’m tired of being told that following the Constitution is too dangerous, or will hurt us politically. I’m tired of these other “creative” methods used to avoid using the Constitution.

    Suing the President is the antithesis of a Constitutional act by Speaker Boehner and the House Republican leadership. It is a political ploy; they will trumpet this action during their next campaign, pointing out how they fought back against the President, only to have the courts deny them.

    The final Constitutional course left to “We the People” is to call upon our state legislatures to fulfill their obligation to rein in the federal government, by applying for an Article V “convention for proposing amendments”.

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