When President Obama came out with this alleged “fix” yesterday, some immediately said isn’t he violating the Constitution, end-running around the law by executive fiat? Isn’t he assuming powers not his under the Constitution?
Well, the answer to that is no, not exactly.
There are several instances of Obama violating the law and/or the Constitution. The delaying of the employer mandate actually is one, as that is actually written within the language of the ACA and cannot be unilaterally delayed. A President cannot actually change or amend laws, that power of course rests, constitutionally, with the legislative branch alone. Obama has to go to Congress to change or amend the provision, and he did not.
But this “fix”, this delay, actually isn’t such a Constitutional violation, although that fact doesn’t let him off the hook, it more squarely places him on it.
WaPo asked the administration what its position was on this question:
The Obama “fix” to the law allows insurance companies to continue current policies for a year. What is the legal basis for this, given that the Affordable Care Act stipulates minimum standards for health coverage?
I put the question to the Obama administration. Here’s the answer, from a spokesperson for the Department of Health and Human Services:
“The Supreme Court held more than 25 years ago that agencies charged with administering statues have inherent authority to exercise discretion to ensure that their statutes are enforced in a manner that achieves statutory goals and are consistent with other administrative policies. Agencies may exercise this discretion in appropriate circumstances, including when implementing new or different regulatory regimes, and to ensure that transitional periods do not result in undue hardship.”
What does that mean?
The legislative branch drafts the law, the executive branch implements it and enforces it That means the executive branch crafts administrative regulations to implement the law. That’s where the devil is in the details here.
In addition to this normal administrative implementation power, when the law was passed in 2010, it gave Sebelius had a right to make up the standards for benefits packages.
Understand what that means. That means that not only did Democrats vote for the ACA not knowing what was in it because they didn’t read it. They also voted for it not knowing what truly was in it because they passed an open-ended provision allowing Sebelius to make up whatever standards she pleased for healthcare plans.
This is what Eric Cantor questioned in the meeting in Feb 2010, what the CBO warned about at that time and what Obama lied about, saying variously within a few minutes, saying yes, he understands 8-9 million plans could be dropped and then later, no, the requirements wouldn’t apply to those already insured.
After the law was passed and Sebelius came up with the regulations regarding the 10 Essential Benefits that should be in every plan, Mike Enzi then said, well, wait a minute, that will gut most of the plans out there, you can’t/shouldn’t do that. Listen to Mike Enzi from 2010:
The Enzi bill would have stopped this debacle, and would have allowed people to truly keep their plans. Having been warned by Cantor, the CBO and now the Enzi bill, Democrats still voted for the debacle to come.
Not only did they vote for the debacle to come, but they called every questioning of this “racist” or “extremist” despite the very real problems and issues that were obvious on their face. When the government shutdown came up, some of these very same questions came up again, but were ignored and shunted aside by Democrats claiming Republicans were being extremist.
So what the President is saying now, is that for a year, I will look the other way, and allow the companies to ignore the regulations that his administration set in place. It has always been within Obama’s control to stop this debacle as regards the cancellations. Because it isn’t the language of the law that caused the cancellations, it is the implementation, the regulations constructed by the Obama administration that has caused the problem from the beginning in this respect. He could have changed it at any point along the way, from 2010 to now.
Why hasn’t he changed it till now, particularly with all the hullabaloo since October 1? Because as Ezekial Emanuel said to Megyn Kelly the 5 million already cancelled was factored into the 7 million needed to be signed up to sustain Obamacare. In other words, not only did they know about the cancellations, but they were counting on them, and in the words of Emanuel seeing the “individual market go away”.
The only thing that has forced a response out of the President now is the anger and fear of Congressional Democrats and his own personal sliding numbers in the polls. His legacy is in trouble, and we can’t have that.
But what does this actually fix? Why, not a darn thing.
He’s saying the insurance companies can now extend these policies that were cancelled for a year.
Of course once you let the genie out of the bottle, you can’t really stuff him back in again. He has created this massive chaos and after forcing the insurance companies into this position is asking them to change within a month to meet deadlines for Jan. 1.
He knows it is impossible and they can’t do it in the main.
If we now understand this was completely within his control and he truly wanted people to keep their plans, why not just grandfather everyone from having to adhere to those new benefits, as he said in his promise? Why only delay a year and have people kicked off plans they liked in a year?
Second, Obama has indicated that he would veto the any bill, like the Upton bill that would allow people to keep their plans. Well, if that’s what you truly want now, why veto?
Again, because a “fix” isn’t what he wants. It hasn’t been what he wanted from the beginning. He knows it’s too late at this point for the insurance companies to pull back because of the position he placed them in. This simply allows him to shift blame to the insurance companies and skate around the 2014 midterm elections.
This is calculation, to the nth degree.
What next? It is not pretty.
Obama cannot afford to actually “fix” this problem. As Emanuel demonstrated, to “fix” the cancellation problem is to doom the sustainability of Obamacare.
Yet, already, we can see the collapse ahead as far more are signing up for the free Medicaid part and far fewer for the paid individual part.
Since the website looks like it will be non-functioning for quite some time, the people cancelled cannot sign up, leaving those cancelled uninsured.
There will not be enough to money to sustain Obamacare, already it is funded by robbing Medicare. They will have to find the money elsewhere, and having already robbed from Peter to pay Paul, don’t believe they will just let the crowning achievement of liberalism “death spiral”.
We haven’t even seen what will happen with the employer mandate when those plans many of which are also non-compliant, and to which the President did not speak, are then all cancelled, by some predictions upwards of 93 million people. Unless that is clearly and decisively cut off at the pass, now will look like a picnic compared to then.