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The Lawlessness of the ‘Fix’
Insurance companies would be insane to offer plans that failed to comply with the ACA.


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Andrew C. McCarthy

Obama claims a power to enforce laws selectively under the doctrine of “prosecutorial discretion.” This is merely an allocation doctrine, however: a commonsense acknowledgment that finite resources make it impossible to enforce every law equally. An administration, for example, might say, “DEA has finite resources, so we’re going to focus on heroin trafficking rather than marijuana possession.” This does not mean the administration is saying marijuana possession is no longer a crime; just that it has higher enforcement priorities and a limited budget. To the contrary, Obama has distorted the doctrine to claim, in effect, that illegalities he unilaterally chooses not to police are somehow no longer illegal — at least until the “waivers” he grants expire. (I would call the waivers capricious, but there really is a rigor to them — they expire after Election Day to protect Democrats from political accountability.)

Prosecutorial discretion is the fig leaf Obama uses to rationalize his noxious decision to relieve corporations, political cronies, and members of Congress from their Obamacare burdens while the rest of us are crushed under ours. It is also the hocus-pocus behind his latest fix. Panicked by millions who’ve lost coverage, sinking poll numbers, and jittery Democrats, the president is now purporting to allow insurance companies to ignore the law and reissue the policies Obamacare’s mandates forced them to terminate.

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But here is the problem: This “waiver” is irrelevant. Even if it were constitutionally proper for a president to flout Congress in the executive branch’s enforcement practices, all that means is that the Obama administration will give insurers a pass until 2014. The Obama “waiver” does not change what Congress’s law actually says, and therefore it has no bearing on the legal obligations attendant to the relationship between the insurer and the insured.

As a practical matter, it is nearly inconceivable that insurance companies would be able to reissue the canceled health-care plans. The process, as Avik Roy expertly explains, is too extensive and complex to complete in the few weeks between now and Obamacare’s coverage deadline — something that an administration that can’t, after three years, get a functioning website running should know. But even if it could be done, the insurance companies would be insane to offer plans that failed to comply with the letter of the Obamacare statute. Similarly, the state insurance commissioners would be insane to permit them, and Americans would be insane to buy them. The policies would be legally unenforceable.

As the telecoms learned, Bush’s assurance that they’d be held harmless meant nothing once Obama and his base started urging warrantless wiretapping victims to sue. The companies spent untold millions in legal fees and costs. The health-insurance companies, too, would be deluged with lawsuits by insureds who claimed that the policies were illegal and wrongly denied coverage for this or that treatment. The insurance companies themselves would get into the act, filing suits to be compensated for payouts they’d made based on the illegal policies. The Obama “waiver” would avail them of nothing in a court, where a judge would be obliged to follow the law, not Dear Leader’s enforcement preferences.

Obama’s fix, moreover, has two other serious problems. First, when Bush gave assurances to the telecoms — the assurances that Obama ridiculed — he actually had a solid constitutional argument, supported by several court precedents, that his warrantless wiretapping program was legal. That is, because the Constitution vests the president with supremacy over foreign intelligence collection, Bush was not required to comply with FISA warrant provisions. The telecoms were thus able to contend that since Bush’s request for eavesdropping assistance was legal, their compliance with it was legal. And still they were sued, repeatedly and aggressively.

By contrast, Obama has no constitutional leg to stand on in violating — and, by his waivers, encouraging violations of — the Obamacare law. The insurance companies have no hope of immunity.

Second, remember Senator Obama’s posturing over whether he’d filibuster immunity for the telecoms? He was in the position to posture because Bush, like all American presidents until 2009, understood that only Congress can confer immunity from suit. That is why there was no overhaul of FISA until Democrats — under political pressure — finally stood down on their opposition to telecom immunity. The immunity became part of federal statutory law; it no longer depended on President Bush’s mere assurances. Of course, that didn’t stop the Obama Left from continuing to file lawsuits and thereby force the telecoms to spend millions to defend themselves; but at least the suits were dismissed and the damage contained.

In stark contrast, Obama is fighting any congressional tinkering with Obamacare for fear that the unpopular law will be gutted. So there will be no legislative immunity for the health-insurance companies — which means there will be no meaningful immunity, period.

Obama is a charlatan, but not a stupid one. He knows what he did on Thursday was a legal charade. His “waivers” are no more about law than Obamacare is about delivering quality health care. Thursday was a performance contrived to set the insurance companies up. With Americans boiling over coverage cancellations, Obama publicly called on the insurers to offer policies that he well knows his own law makes illegal and that his “waiver” is powerless to legitimize. He desperately hopes Americans will be gulled into blaming the insurance companies for the catastrophe he has wrought.

He would have gotten away with it a year ago. He won’t get away with it now.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.



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