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. Blouise says: I will add that one of the main ingredients in a planned corruption is the planned fix.

    I agree. The corruption and incompetence are not incompatible. The corruption can be hiring a friend that puts incompetent people on the job, under-funds the project so they can take massive profits, and rolls out a piece of crap for show.

    As for those that doubt Obama would sabotage his own “signature legislation,” why not? He’s got up to three more years to get it done and the law is the law, screwing up the roll out doesn’t change the law or threaten it. So favors get done to the tune of millions in windfall profits for cronies and eventually the administration makes it work. A year from now Obama will be claiming victory. Twenty years hence he won’t be remembered for the stumbling start, that will be forgiven by success a year from now, and he will be remembered for passing it in the first place. Isn’t that the point of a legacy accomplishment?

    The incompetence will be forgotten as soon as the results are up to par; by everybody, that is, except those that profited from it. It is the nature of the modern media cycle, if they don’t have anything bad to say, they typically do not say anything at all.

  2. I get so worked up some days I sometimes forget just how many others out there are equally concerned.

    Another issue is avoiding burnout again and knowing just how far we can push ourselves, maintaining a healthy pace without going over the cliff. (again lol )

    (Tell’em the Truth & they’ll think it’s He’ll)

  3. pdm,

    “My apologies for jumping in the middle of your conversation. Very bad form, I know.” YOU can jump into any conversation I’m having with anyone!

    Truth is, computers flummox me. Allow me to bore you with a few lines of background. My brother was a computer “genius” and turned me onto the technology in the late ’80’s by gifting me a Macintosh 128k and telling me to stay away from Gates’ crappy Windows and IBM. He flew into town, set it up and flew out again. He explained everything to me except how to turn it on (too basic for him). After a phone call I turned it on and immediately put it to sleep. Needless to say the next few days required many phone calls and many temper tantrums on my part … I actually started personifying my Mac as ” The Enemy”. (Every computer I’ve owned has been named thusly and I am presently typing on “The Enemy XII”)

    The only sites available once the internet came to town … again my brother bringing me new Macs and introducing me to dial-up which was some sort of military service … were .edu and some weird military sites that dropped me into chat rooms with people at military bases … god only knows how I got there.

    Present day:

    I read SOTB’s explanation (both this one and the ones he’s offered on other threads) and I even listened to the link he provided (which went on and on and on) but still don’t understand how in the hell they could screw it up sooo badly. And, whether I like it or not, based on my experience from the outside looking in and listening to my brother’s tales from the military, Tony is right about planned corruption and this looks like, walks like and talks like a duck.

    It could be an ugly duckling that turns into a swan and I certainly hope that is the case and SOTB is right, for I know people who need the ACA and need it badly.

    But I will add that one of the main ingredients in a planned corruption is the planned fix.

  4. The thinking is that Congress is so dysfunctional that the president has to rule by executive order. Congress has long abdicated to perogative of declaring war, leaving that to presidential order, and now it is doing the same thing with basic law making power.

  6. I see no one actually listened to Obama’s Press Conference on Thursday. It explained mostly everything. The IT contractors were NOT the problem. They used Sr. Business Analysts to get all Business Requirements, developed a Project Plan with Beta Testing with Life Cycle support that could have lasted about 6-12 months… then the FEDs promptly rejected it and said JUST DO IT. That’s the kiss of death for any e-commerce roll-out. I know as I headed up a Y2K fix program for a Fortune 50 company and we took at least 3 years to plan ahead. It went over without a hitch (mainly because Y2K was mainly bunk). Our biggest headache came from the FEDS as we were a government contractor and they were constantly throwing us pointless monkey-wrenches to fix.

    The President said in the Press Conf that the website is sound. However, it is doing highly complex things in the background none of you know about. It’s not just a HMTL/Javascript web site your teenager could build in one night. It does all kind of secure database queries and data comparisons to the user interface. It’s a nightmare program with probably millions of lines of code and hardly any of it was Beta tested.

    Mr. Obama is NOT breaking any laws nor is he violating the Constitution on this fix. What he’s doing is “built-in” and not a new add-on. If you listened to the Press Conf you would know this.

    AND NO ONE IS BEING IMPEACHED… Jeez dude go back to High School and learned how that’s done in USA. Only ONE person can call for that and he has NO PLANS to impeach anyone as he would look like a complete fool as Mr. Obama has NOT committed any acts of high treason or any kind of misdemeanors. That’s only in your “hater” wishful-thinking.

    And Medicare, Medicaid, Social Security, etc. are ALL part of the 95% that was grandfathered in without any cancellations, etc. The 5% is just a small subset of American people who really didn’t have policies that were in line with the new ACA law. The insurance companies did not have to unilaterally cancel them. They could have just modified the policies accordingly; but as someone said it was easier to just dump them and be rid of them making the President look bad. That’s not Mr. Obama’s fault.

    In summary: are we absolutely sure (beyond a shadow of a doubt) that the poor little web-site is getting it’s “monkey-wrenches” from a well-meaning but misguided contractor who thinks he/she is doing a service to their political party? I’m just saying. Phoebe I think that’s your queue but you may need Eric Holder to give you your marching orders… Oh I forgot he’s being impeached! 😆

  7. [music]
    We don’t need no edu K tion.
    We don’t need no thought control!
    All in all… its another glitch in the road!

  8. While you are at it. Can you RepubliCons undo Social Security and Medicare while you are at it? Those were bait and switches too. I distinctly recall Wendell Wilkie saying that. And Ike. And Raygun. Take it away! We don’t need no socialism here. We need our own separate insurance policies. Oh, insurance is a type of socialism. Ok. We need to stand on our own. We don’t need to assist one another at nuthin but birthin babies. Thank you Turley and Koch Bros for The Enlightenment. CNN is grateful.

  10. Blouise, I’ve not kept up with Turley or this thread lately but just caught of glimpse of your note to Tony @ 7:52. Why are you not persuaded that the contracting of federal website designers is a whole lot different from hiring your own team on your own dime? Planned corruption for his legacy program makes no sense at all. What does he get out of it except a failed presidency?

    My apologies for jumping in the middle of your conversation. Very bad form, I know.

  11. Elaine (or Blouise to please forward to Elaine if she is not around )
    Here is a terrific article by Tim Egan for the next time you discuss labor relations and/or the disappearing middle class. It’s about the Boeing union vote.

    http://www.nytimes.com/2013/11/15/opinion/egan-under-my-thumb.html?h

    More OT for Elaine…

    wonderful episode on This American Life tonight regarding preschool program in Oklahoma. I’ll search for a link. It’s first-rate (and the first good news I’ve seen in weeks!)

  12. I have read about half of these posts from you all and I can only surmise that we are in deep bull butter. Whether you are a liberal or conservative or try to dance between the rain drops between the two, the government that liberals want does not jive with the government conservatives want to restrict. We are two junk yard dogs fighting over the same bone.

    We have a President that bypasses Congressional legislation, I.E. the representatives elected to be the mouth piece of whatever house district or state senate seat We the People elected them to. He changes laws unilaterally, which in my opinion is breach in his oath to uphold and defend the Constitution, not because what many of you have said is for We the People or as others have said to placate the companies in the insurance industry. He simply is changing these laws, at times on his own, simply to protect his political ideology and by extension trying to deflect the unpopular spectacle that is the ACA from his fellow Democrats. Congress is just as guilty on both sides of the respective isle, those Senators and House Rep’s have also made an oath to uphold and defend the Constitution yet, either to show solidarity with their party or to keep their nice clean suits out of the mud so they can get re-elected do nothing to fulfill their oath not just to We the People but to the Constitution. I truly believe out Constitutional Republic has never faced a greater enemy than our own elected officials.

    Whether you are liberal or conservative, Democrat or Republican take one minute to look at what has taken place in the last few weeks. If that was a Republican President acting as Obama has acted, the Left would be acting as the Right. We have strayed so far from what our founding fathers intended we have lost our way. There is such a huge divide between the Left and the Right I do not see this country ever being whole again.

  14. “So I have to believe this is not due to bumbling incompetence but planned corruption.” (Tony C)

    Makes sense especially when one considers, as you did earlier in your text, that Obama’s Internet tech crew was stellar when he was a candidate as is the Democrat’s entire national site. The democrats are light years head of the republicans in their internet tech abilities so planned corruption makes a whole lot of sense.

    Guess he pulled a Cheney/Halliburton.

  15. DavidM: Low bid? I could have done a working website for a fourth of what those guys charged.

    I can’t program a website, but I have had pretty complex websites created for a pittance. I cannot believe this was anything but a money dump on some friend of the administration.

    DavidM: The problem is incompetence in the administration.

    Maybe. But Obama’s Internet tech crew was stellar when he was a candidate, and deployed a site easily as complex as this in under a month.

    So I have to believe this is not due to bumbling incompetence but planned corruption. To me the truth is (based on what I saw from the inside when in the military) the government can be just as competent and efficient as it wants to be when they really care about something. Even in the late 70’s I saw wonderful tech that only came to light 25 years later. Which leads me to think incompetence is just a convenient illusion they deploy when they have something to cover up, like handing over a truckload of hundreds to some important commercial ally for doing next to nothing.

  20. Blouise wrote: “Obama screwed up royally with the low bid tech guys.”

    Low bid? I could have done a working website for a fourth of what those guys charged. The problem is incompetence in the administration. The tech guys claimed info was held back from them because of the election.

    Regardless, the website is the least of the problems with Obamacare. The Republicans have been a lone voice in the wilderness about these problems, accused of being haters and racist, but the truth is that the Republicans were right all along.

    Professor Turley is right in how the fix to the law must happen in Congress. The President needs to lead Congress, give his nod of approval toward what he wants to do to fix the problem. He needs to accept the numerous requests from Republicans who have asked to meet with him about health care reform instead of shutting them all out and refusing to meet with them. It is time for the President to bend a little rather than being so rigidly uncompromising. He needs to realize that Republicans have good ideas too, and if he had heard them when this law was passed, we would not be in this big mess now.

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