The Corner

Obama Looks to Illegally Change Obamacare . . . Again

Yesterday evening, Politico’s Blake Hounshell asked this question on Twitter:

The short answer — this week — is this, from the Washington Post:

The Obama administration is considering an extension of the president’s decision to let people keep their individual insurance policies even if they are not compliant with the health care overhaul, industry and government officials said Thursday.

Avalere Health CEO Dan Mendelson said Thursday that the administration may let policyholders keep that coverage for as long as an additional three years, stressing that no decision has been made. Policymakers are waiting to see what rate hikes health insurers plan for the insurance exchanges that are key to the overhaul’s coverage expansions.

“The administration is entertaining a range of options to ensure that this individual market has stability to it, and that would be one thing that they could do,” he said.

To put it bluntly, this is illegal. “Prosecutorial discretion” is one thing; completely ignoring a part of what the Left is awfully fond of describing as “the law of the land” is quite another. And make no mistake: that is what the Obama administration is considering doing once again – usurping the power of Congress and rewriting the rules on its own. As Northwestern’s Eugene Kontorovitch correctly observed last time the president cloaked himself in the Divine Right of Kings, this really isn’t a close one:

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law. Such action would create a direct conflict between state action and federal law—and the latter automatically wins (even without the broad view of preemption of state laws that the administration has championed in immigration cases).

Thus far, with Obamacare, Politico records, the administration has,

postponed the employer coverage requirements for a year, delayed the online enrollment for the federal health insurance exchanges for small businesses, and told health insurers they can extend people’s coverage for an extra year — a last-minute attempt to un-cancel millions of canceled policies. It also delayed the Spanish-language website, even though Hispanics are a large proportion of the uninsured population. It even postponed next year’s enrollment period, pushing it conveniently past the November elections.

In part because of how it was written (the litany of ”the secretary shall” mechanisms don’t help), and in part because the president appears to believe he enjoys the prerogative to change the nation’s laws on a whim, Obamacare has become more of an enabling act than a statute — a general writ of permission for the executive to tinker with the country’s health insurance system and to attempt to inoculate himself and his party from dealing with the consequences of their governing decisions. Conservatives are concerned enough about this as it is. Why would they extend the problem to immigration?


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