The Constitution’s executive article (Article II) begins, “the executive Power shall be vested in a President of the United States of America.” The Constitution vests the entire executive power in just one person. Yet in his press conference this afternoon, President Obama replied to a question with this: “I was not informed directly that the [Obamacare] website would not be working as – the way it was supposed to. Had I been informed, I wouldn’t be going out saying, boy, this is going to be great.”
The purpose of Obama’s press conference, however, was not to talk about his ineptitude in exercising the executive power — even as it pertains to his signature legislation. Rather, it was to announce how he — as he put it — will now “improve” that legislation.
Alas, the president doesn’t have the authority to change laws, and therefore he doesn’t have the authority to “improve” them. That authority rests solely with congress, as we learn from the first line of the Constitution’s legislative article (Article I): “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .”
Undaunted by that language, Obama proceeded to lay out how he would “improve” Obamacare:
Already people who have plans that predate the Affordable Care Act can keep those plans if they haven’t changed. That was already in the law. That’s what’s called a grandfather clause that was included in the law. Today, we’re going to extend that principle both to people whose plans have changed since the law took effect and to people who bought plans since the law took effect.
In other words: The grandfather clause is “in the law” — and here’s something new that isn’t in the law (that I’ve just made up), but it will “improve” the law, so I’ll pretend it’s in the law.
If there is legal justification for this, the president didn’t provide it. Nor did his Department of Health and Human Services’s letter to state insurance commissioners, which was released in connection with his announcement.
Section 1251 of Obamacare lists the conditions under which someone can keep his or her health plan even if it runs afoul of Obamacare’s myriad coercive mandates. That section, entitled “Preservation of right to maintain existing coverage,” says, “nothing in this Act . . . shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act” (italics added). It then adds that additional family members can later be added to “a group health plan or health insurance coverage in which an individual was enrolled on the date of enactment of this Act” (italics added). It also says that any new employees and their families can later be added to a group plan “that provide[d] coverage on the date of enactment of this Act” (italics added).
So how does Obama possess the lawful authority to take unilateral action to permit the continued sale of plans that weren’t in effect in March 2010 (when the Democrats passed Obamacare into law)? How does he possess the lawful authority to permit the continued enrollment of people who first enrolled in a plan (even one in effect in March 2010) after that time — unless a family member added them or they were new employees (or their families) who joined a group plan that had already been in effect in March 2010?
It would seem that he doesn’t.
Perhaps Obama will soon provide a convincing legal justification for his actions. But for now, this looks like yet another example not only of government by waiver but of this president acting in plain defiance of the rule of law — in plain defiance, what’s more, of a law he spearheaded, signed, and made the centerpiece of his presidency.
— Jeffrey Anderson is executive director of the newly formed 2017 Project, which is working to advance a conservative reform agenda.