The Corner

Obama Administration to Invoke Constitution’s Little-Known ‘Election Year’ Clause

In the Hill, Elise Viebeck writes that:

The Obama administration is set to announce another major delay in implementing the Affordable Care Act, easing election pressure on Democrats.

As early as this week, according to two sources, the White House will announce a new directive allowing insurers to continue offering health plans that do not meet ObamaCare’s minimum coverage requirements.

Prolonging the “keep your plan” fix will avoid another wave of health policy cancellations otherwise expected this fall.

The cancellations would have created a firestorm for Democratic candidates in the last, crucial weeks before Election Day.

The White House is intent on protecting its allies in the Senate, where Democrats face a battle to keep control of the chamber.

“I don’t see how they could have a bunch of these announcements going out in September,” one consultant in the health insurance industry said. “Not when they’re trying to defend the Senate and keep their losses at a minimum in the House. This is not something to have out there right before the election.”

This anonymous “consultant” appears to have forgotten that this is a constitutional republic, not a benevolent dictatorship. How could the Obama administration have a “bunch of these announcements going out in September”? Well, because the Obama administration’s signature law demands that these announcement go out in September — and, as we are all utterly bored of being reminded every time that someone suggests changing it by the proper channels, that law was passed through Congress, signed by the president, and upheld by the Supreme Court. If its opponents are expected to accept that Obamacare is the “law of the land” — and, too, that it can only be altered if they win an election and pass their coveted changes through the established order — shouldn’t its supporters be expected to accept that rule, too?

This law, remember, was a tantalizingly close affair — haggled over, subject to extraordinary political conflict, and passed by the slimmest of partisan margins. The Democratic party “won,” yes. But they won Obamacare-as-written — an overly broad and overly executive-friendly monstrosity to be sure, but not a carte blanche enabling act that affords the president the unassailable right to control the entire healthcare sector until such time as he is replaced by a Republican. Does the party know this?

That their decision to rush ahead anyway might eventually yield some unpleasant results for those who backed it is unfortunate for them. But it is not an excuse for them to subvert the American settlement. Indeed, there is only one thing worse for a free country than for it to have got the stage at which the executive branch is rewriting the laws with impunity, and that is for it to have got to the stage at which the executive branch is rewriting the laws with impunity while the media nonchalantly explains that it had to do that or it could have lost the next election. Thing is, there are supposed to be consequences to political decisions. That’s why we have elections: So that the people who have been entrusted with power might be judged by the electorate. It doesn’t make it better to explain that the government is willfully breaking the rules in order to limit its accountability. It makes it far, far worse. 

This is especially true given that the executive branch’s opponents are more than happy to accommodate the changes that the president has taken to making alone. “One party is intransigent” serves as no good excuse for imperialism at the best of times. But the cry falls especially hollow when one considers that all of the delays and modifications that Obama has deemed to be in the national interest would have been supported by a significant number of members of both parties. There is no clause in the Constitution that holds the president to be acting legally if his unilateral action would have been supported by Congress anyway; nor is there an understanding that in an election year the executive may fuse with legislators from his own party to take any decisions he deems to be to their mutual benefit. On Syria, on immigration, and repeatedly on Obamacare, this president has shown that he doesn’t understand this.

Franklin missed a few words: “A republic, if you can keep it — during an election year.”

UPDATE: A good point from a follower on Twitter. If, as we were told, Obamacare didn’t cause the cancelations, how can a change to the law prevent them?


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