July 23, 2013 | By | Posted in Commentary

Commentary: When the government does it, it’s not illegal

Eric Boehm |

HARRISBURG – The past few weeks have not been great for the concept of rule of law.

You know that quaint notion that we are a nation of laws, not of men? The idea that our elected officials are beholden to something other than their own political whims?

Exhibit A is the Obama administration, which made the unilateral decision on July 3 to delay the implementation of a major part of the Affordable Care Act – AKA, Obamacare – for an entire year. Never mind the law explicitly says the new “employer mandate” takes effect in 2014, because Obama has decided it can wait until 2015.

LEGAL HEADACHES: The Obama administration decided to delay the implementation of a major component of the Affordable Care Act – no matter what the law says,

For the uninitiated, the employer mandate is a key component of Obamacare and requires all businesses with at least 50 employees provide health care coverage that meets federal qualifications. Business groups say the 50-employee cap will dissuade small employers from growing and gives businesses that are just above that threshold a pretty good incentive to fire a few people to avoid having to offer expensive benefits to all.

All-in-all, those are not great ways to incentivize hiring, which just so happens to be a crucial part of the national economic recovery.

So cynics will say the delay is all about political timing. By pushing off the onerous employer mandate until 2015, Democrats won’t have to deal with public outcry about the law during the 2014 election cycle as they fight to keep control of the U.S. Senate.

But some legal analysts already have raised the question – a good one – about whether the administration is allowed to simply ignore a major provision of its own health insurance overhaul.

Exhibit B is right here in Pennsylvania, where Attorney General Kathleen Kane has announced she will not defend a state law defining marriage as “between a man and a woman” from a lawsuit brought by 27 plaintiffs who seek equal protection for gay marriages.

KANE IS UNABLE: Attorney General Kathleen Kane says she is unable to defend the state against a lawsuit regarding its ban on same-sex marriages, because she views the law as unconstitutional.

KANE IS UNABLE: Attorney General Kathleen Kane says she is unable to defend the state against a lawsuit regarding its ban on same-sex marriages, because she views the law as unconstitutional.

Last week, Kane cited her personal opposition to the law as the main reason why she will not defend it in court. That leaves Gov. Tom Corbett to appoint an attorney to defend the law, if he so chooses.

Regardless of your feelings on Pennsylvania’s same-sex marriage ban, Kane’s actions should raise some eyebrows. And regardless of her feelings about the law, Kane is required as the state’s attorney general to defend Pennsylvania statutes from legal challenges.

The ban on same-sex marriage probably is unconstitutional and should be overturned. But it is the job of the state Supreme Court to make that judgment, not the state attorney general.

And the employer mandate probably is an excessive burden that will hurt the economy and cost Democrats some elections. But it is the job of Congress to make (or, in this instance, unmake) laws, not the executive branch. Anyone in a sixth-grade civics class could tell you that.

In the wake of these seemingly arbitrary decisions by some of our highest-ranking elected officials, I can find at least one silver lining.

If we’re going to accept the premise that government can refuse to acknowledge or enforce any legal statute it chooses, Secretary of Revenue Dan Meuser should announce the immediate suspension of entire state tax code.

Absurd? Yes. That’s why we shouldn’t ignore the rule of law.

Boehm can be reached at and follow @PAIndependent on Twitter for more.

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Eric Boehm is a reporter for PA Independent. He can be reached at or at (717) 350-0963.

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