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What’s Happened to the Executive Obligation to Execute the Law?



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As Patrick just explained, President Obama has come up with an “administrative fix” to address the cancellation spree that his law, Obamacare, has triggered. I am going to leave aside for now the questions of how insurance companies can technically pull this off, or whether or not people will correctly see this move as a way to deflect the blame onto the insurance industry, or whether anyone will truly buy the president’s excuse that it was A-okay to mislead Americans about the law since it was affecting only 5 percent of the American people. For now, I would like to ask about the legality of the whole thing. Can he just decide not to enforce the law?

Seriously, I know that since the law was passed, the administration has changed it multiple times and has postponed the enforcement of some of its parts to address the many problems that have surfaced as a result of a poorly designed law. But that he has done it in the past doesn’t seem like a good excuse for doing it again without its having serious consequences for him. Also, just because the president thinks he has the right to unilaterally change the law, his law, when it pleases him doesn’t mean he has the legal authority to do so.

In addition, these constant changes in the law have and will continue to have one very concrete consequence: They inject a lot of uncertainties in an already uncertain environment. This is a big reason why many developing countries can’t get off the ground. The law says one thing, and the government does another. If I were an insurance company, I would seriously wonder what changes the administration will make next. I also suspect that people in the market for a policy may wonder whether they really have to buy one or not, or whether they actually should buy one, since the administration may make even more changes in the future. And what of the employers — the group that hardly anyone is talking about — who have already made the tough adjustments because their plans didn’t pass muster?

So I am asking again: What authority does the president of the United States have to decide that he will or will not enforce some parts of the law that have become inconvenient for him politically or that are proven to have been a terrible idea?



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