Congress, Constitutional Law, Politics, Society

The Fix Is In: Can President Obama Grant An Effective ACA Waiver To Millions Of Disgruntled Citizens?

President_Barack_ObamaPresident Obama is taking a great deal of heat for the cancellations of millions of policies after he repeatedly told citizens that if you like your policy you could keep it. He recently apologized for what seems a classic bait and switch. However, Obama has now announced a fix that raises a more serious question in my mind. Most of us have become used to a relatively high level of dishonesty from our leaders in Congress as well as the White House. This blog has documented whoppers, even perjury, that results in little more than a shrug in today’s political system. However, the “fix” involves the President unilaterally changing that scope and timing of a law. This has been a recurring concern with this President and the rise of the “Imperial Presidency” that he has established within ever-expanding executive powers. I will be discussing this issue today on CNN.

While the line between legislation and enforcement can become blurred, this view is generally reflective of the functions defined in Article I and Article II. The Take Care Clause is one of the most direct articulations of this division. The Clause states “[The President] shall take Care that the Laws be faithfully executed . . .” U.S. Const. art. II, § 3, cl. 4. It is one of the clearest and most important mandates in the Constitution. The Framers not only draw the distinction between making and enforcing laws, but, with the enforcement of the law, the Framers stressed that the execution of the laws created by Congress must be faithfully administered. The language combines a mandate of the execution of laws with the qualifying obligation of their faithful execution.

Nonenforcement orders challenge this arrangement by imposing a type of presidential veto extrinsic to the legislative process. The legitimacy of such orders has long been challenged as an extraconstitutional measure. Yet, since Thomas Jefferson, Presidents have asserted the discretion not to enforce laws that they deemed unconstitutional. Jefferson took a stand against the Sedition Act that was used for many blatant abuses against political enemies in the early Republic. Jefferson cited his oath to protect the Constitution compelling him to act to “arrest [the] execution” of the law at “every stage.” Jefferson’s stand represented the strongest basis for nonenforcement in a law that was used against political opponents and free speech.

From Internet gambling to educational waivers to immigration deportations to health care decisions, the Obama Administration has been unilaterally ordering major changes in federal law with the notable exclusion of Congress. Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process. The unilateral imposition of new rules robs the system of its stabilizing characteristics in dealing with factional divisions.

I cannot find the authority under the ACA to grant millions of Americans an effective waiver or delay. The White House will clearly defend this as simply an exercise of discretion in the enforcement of laws. There is certainly support in such claims, though they are controversial. I just published an academic piece the explores the constitutional problems with the expansion of the powers of the “fourth Branch.” See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). I also wrote a column on the subject for the Washington Post. I fail to see how the legislative process can have meaning if a president can effectively rewrite laws in the name of agency discretion. It is an argument that adds to the already dangerous concentration of executive power under this President.

This issue has nothing to do with the merits of the ACA. As with my criticism of Sebelius for the grossly negligent administration of the law, this is not about how one feels about the law. President Obama will leave a presidency that is dangerously unchecked and Democrats will be saddled with their support of those powers when they are claimed by a president less to their liking.

The President used a clearly misleading argument to secure support for the ACA. He is now trying to reduce the outcry over that argument with a political recalibration of the law. To do so, he is acting in a clearly legislative fashion in my view. I could be wrong. The White House may find a provision in this law (that few members actually read) where it gives him the power to unilaterally grant exceptions and delays to different groups. However, they have not suggested it and I cannot see it. That leave us with the same inherent executive power argument that has been the mantra of this President in areas of surveillance, kill lists, and other areas.

The “fix” makes obvious political sense for the Administration but I fail to see the constitutional basis for such unilateral changes in a federal law.

119 thoughts on “The Fix Is In: Can President Obama Grant An Effective ACA Waiver To Millions Of Disgruntled Citizens?”

  1. SOTB,

    I think you understand the political dynamic at work here.

    The Republican’s shot themselves in the foot with the shut down crap and are trying to find a way back.

    The insurance companies found a way to dump the loser policies hoping to gain on the exchanges.

    Obama screwed up royally with the low bid tech guys.

    It’s all going to be fixed but we have to play the game and pretend that single payer is not going to ever happen so that the dumb asses can look smart.

    I have a friend (wink, wink) who has never paid a red cent for healthcare insurance having always enjoyed a “Cadillac” union policy. I repeat …not one red cent for the last 39 years!! He is retiring and finding out that for medicare A and B he must pay $104 a month and so must his wife. But, the supplemental plan to medicare that his union provides is $16 (single, $32 family) a month which covers everything that medicare doesn’t pay and guarantees the meds he takes remain the same price that he now enjoys under his Cadillac plan … approx $20 for a 3 month supply (that would be $6 per month for each prescription) and, AND, he still has dental and vision … heh, heh … aren’t unions just the pits?!

    Sometimes Kool-Aid is just Kool-Aid.

    If you have long term retirement money invested in Medical Insurances companies … get out. If it’s short term profit you’re looking for … stay in.

    However, the ACA is not really the issue that JT is addressing. Seven, eight years ago JT was warning us of the constitutional issues Bush/Cheney were violating and the fact if these issues were not handed immediately the next President would expand on them. Sure enough.

    I understood then and I understand now … he’s right.

  2. “President Obama will leave a presidency that is dangerously unchecked and Democrats will be saddled with their support of those powers when they are claimed by a president less to their liking.”

    Ah, liberal hypocrisy; all the hypocrisy befitting a right winger PLUS the added scienter of knowing better.

    As a certain planet designer and fjord aficionado would say…

    “It’s okay because it’s our guy doing it.”

  4. The President has a constitutional unlimited power of Pardon for any reason. Apparently that includes a blanket pardon. So how exactly is this a far step from pardon, to say that, due to exigent circumstances and his own miscommunication, certain people meeting certain qualifications are exempted (or pardoned) from prosecution for being in violation of the ACA?

  5. indigo,

    We’ve heard nothing but outsourcing to cheap slave markets for decades.

    I would think there would be a way to outsource our health-care needs & health-care insurance to cheap nations.

    I hardly trust this system here to even go in for care anyway.

  6. sonofthunderboanerges
    5% is blowing smoke. Smoke blurs vision.
    Small business is next in line. We were offered 17% increase to renew in December or 30% increase to renew in January when full implementation is required. The law is written is such manner that within another year there will be no grandfathered policies.

  7. Pingback: Is President Obama’s “Administrative Fix” Even Legal? Probably Not

  8. Maybe Obama can write another illegal executive order to suspend the laws of physics while he’s at it.

    My wife takes the position that if the Jap/GE nuke mess finishes blowing that she won’t run to the Southern Hemisphere as it makes no sense because if the blow the Northern Hemisphere it’s only a matter of time before the same type suicidal sociopath lunatics blow what’s left in the Southern Hemisphere.

    http://www.washingtonsblog.com/2013/11/removal-fukushima-fuel-rods-hits-bump-even-starts.html

  15. Annie people like me who despise this mf of a President do so mostly because he is what one person called a debonair snake oil salesman who was able to con many people into his line of sheeet. It disappoints us that people we love follow a blind faith that his line of sheeet will bring us to a new world of pervasive bliss. I quote one DMiller: “If you still think Obamacare is a viable plan, you’re just one of those people who always see the glass as half full of it”
    I respect that we all have different life experiences and come to different conclusions based on that. I’ve been wrong before and adjust my thinking. In this case this President deserves all the invectives cast his way because he is, dare I say, conducting himself and his “administration” in worse than Nixonian fashion. History will show this dark time where a person almost, I hope, convinced a nation that others were villains while in fact he was the one who damaged the Presidency and trust in government more than the impeached Republican President Nixon.

    We are spurned lovers. Act like one.

  16. Also after 9/11, you can pretty much make up anything to be legal: torture, assassinations, Guantanamo, renditions, etc. The U.S. Constitution has become an improve act, not the rule of law.

    The powers that be merely don’t want it to happen. If they did, they would do it illegally, unconstitutionally or just make it up like they have everything else since 9/11.

    Maybe that’s why Americans have lost faith in their government?

  18. Aside from the fact that the botched roll-out of ACA is a grievous, self inflicted wound by the administration; the consensus here seems to be there is no possible legal rational for Obama’s quick fix of the cancellations.

    But Nicholas Bagley writing in the Incidental Economist web site outlines some ideas regarding IRS rule making authority including the idea of “time limited transitional relief” and then makes the statement: “The administration may intend to make the same kind of claim here: that CMS’s generic grant of rulemaking authority has long been understood to include the power to offer time-limited transition relief from regulatory obligations.”

    I think we are faced with a situation where if the administration gets ACA right over the next year or so then no body will care about this. And if they don’t get it right, again, no body will care about the delay – the delay will be the least of their problems.

  19. It appears to me that Prof. JT is jumping to conclusions again. After I listened to the Obama Speech 14-Nov-13 at the Washington Post website – (it’s about an hour long with Q&A with MSM); I feel if you listen to it (from the horse’s mouth – as it were) you too will have a different feeling about Mr. Obama and ACA CONTRARY to what Prof JT would like you to feel here.

    In my understanding of it is that 5% of the population would find better insurance policies in the new marketplace. The remaining 95% where grandfathered in with no problems whatsoever. It seems that 5% was screwed by the “marketplace” (i.e. insurance companies). This marketplace is really the bad guy here and not the President. Obviously they do not want to play fair and will do anything to make the roll out hit bumpy roads at all turns.

    So he is not CHANGING the ACA law to accommodate this 5%, as the law already has flexibility to allow the POTUS to do this (IMO). He says they are IMPROVING the the law which implies the inherent flexibility. The video starts talking about the Philippines disaster until time-stamp 02:00:00. Then at 05:10:00 he starts into ACA. He mentions that if the law needs to be changed for unfix-able problems he would work with Congress on legislation to modify. The video is very TRANSPARENT and enlightening. It’s not political and seems quite self-explanatory.

    The video starts to loose focus at the first question about Iran and nuclear weapons but then regains focus at 30:00:00. I think this video will clear up some of your misunderstandings about ACA and the roll out.

  20. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”
    -James Madison

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