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. Tony,

    Sorry man, I just do not believe in what you believe in. You are wrong about so many of your line item responses to my post. I do not believe as you do so I am a “Dummy”. Again typical liberal bull shit, ‘You don’t believe as me?!? You are soooo stupid.’ Your arrogance is unjustified and your condescension is tired and stale. It sucks for you that you are tired of hearing that life is not fair, generally you liberals do not like to hear the truth about things when you know you have no power to change it.

    And do not lecture me about the great majority of the people. You liberals are hanging on by your fingernails and the only time you can get the populace in this country to put Democrats in a position of power is when you bribe enough of the weak with government hand outs and fantasy Utopian scenarios. And you can stow your liberal line about me not caring about the infirm and bunny rabbits. I do care, however I am perfectly content on using my own judgement of when people do truly need help or are just trying to scam me. I do not need your government telling me when and when not I should have compassion.

    And you call me childish in my views when you can not even allow another to have a view that is different as yours. Well I am not going to waste anymore time on you. There is no point in arguing with someone that obviously believes his “Wants” as you say, are the only valid wants to be addressed.

    1. Jake wrote to Tony C: “You are wrong about so many of your line item responses to my post. … And you call me childish in my views when you can not even allow another to have a view that is different as yours.”

      Jake, most in this forum have an enormous ego and hubris to match that makes cordial discussion with dissenters not possible. They constantly project that upon anyone who thinks independently, and if you have a conservative or traditional paradigm, or worse yet, a theistic worldview, it is simply more than they can handle. They go berserk as if they have a mental disorder with personal attack after personal attack. I want you to know that others who are more open minded to a wide range of concepts, who read the exchange between you and Tony (which I think is a pseudonym) can readily see the vacuous nature of Tony’s laments against you.

  2. Gene,

    In regards to your ‘the second scenario and pdm’s “a bridge too far”’ … I think that is exactly what will happen and that the insurance companies, blinded by the flashing dollar signs, failed to look beyond the casino lights to other consequences which is typical greed at work. Obama would be a fool to let such a serendipitous gift go to waste.

  3. lotta,

    I sincerely thank you for all the research and presentation of same. If it was more than Tony C knew, it was a heck of a lot more than I knew!

    Perhaps what was missing was a really good, overall Project Manager and I, seriously, have just the man for the job … Slarti.

  4. Tony C – I’m reserving a place on my “man crush” pedestal for the likes of Gene H., Otteray Scribe, and Mike Spindell. I’m dusting it off right now and putting you up there. I like your clarity of thought and apparent perspicacity. I may have to put you next to Christopher Langan (OMG there SOTB goes again!) 🙂

    I just can’t disagree with you – well except you know what… My neuroplasticity deficits are showing. I just realized YOU’RE the Physics professor I was refering to earlier – duh!

  5. Jake says: You are making a lot of assumptions.

    Some are not assumptions but inferences; i.e. logically derived conclusions. Those aren’t the same as assumptions.

    Jake says: does not mean I want the infirm or elderly to starve.

    “Want” has little to do with it. Apparently you also do not want to be forced to pay for the food that prevents their starvation, or you want that to be voluntary, or you want that system to be 100% error free or non-existent, or you want churches to do it, or whatever.

    There can be many things you want, and pointing out one of them to prove your goodwill is insufficient proof. All that matters is whether, in the end, the infirm and elderly are starving because your entire collection of prioritized “wants” somehow absolves you of all responsibility for doing anything about the starvation of the infirm and the elderly.

    Jake says: I do however expect people that have kids take responsibility for their children and take on the responsibility to raise contributing members of society, just as I have done.

    And this is what I am talking about; here is another “want” of yours (your “expectation”) you propose to start the process of mitigating your responsibility toward others.

    Jake says: As usual your typical liberal attempt to vilify those that do not believe as you do is par for the course from the liberal handbook.

    Here you take a poke at absolving yourself of all responsibility, helping others is a tactic of the “enemy” (in your mind, liberals), and we are “vilifiying” you as if your selfishness was somehow a crime!

    You are claiming victimhood here, and the reason is obvious: You want us to feel sympathy for your own lack of sympathy.

    Jake says: There has been one time in my life that I could not find work and I turned to my family and to my church for help and support. It was the most shameful thing I ever did …

    And further, you claim that asking for help is “shameful.” So now, in your view, the infirm and elderly that need help should be ashamed at needing help. Those that cannot find work, through no fault of their own, should be ashamed at that.

    If you get wheeled into the E.R. with a gunshot wound to the chest, a wound which is no fault of your own, you need the help of a doctor and surgeon. Should you be ashamed of that? Should you be able to just take an Exacto knife and some fishing line and extract the bullet, stop the bleeding, and suture up the arteries on your own? Is this the premise, that any help ever provided shames the recipient?

    Jake says: But you fine liberals have taken shame out of being on the government rolls.

    Apparently not enough, since you still regard it as shameful. I do not, and I am not on them. There is no shame in being helped, there is no condescension in helping.

    The only shame is in theft, but I see no reason to consider legitimate aid theft. To do so is ridiculous, reducing human misery and preventing undeserved harm is a fundamental good.

    Jake says: Nothing in this life is free and absolutely life is not fair.

    I am so sick of hearing that, it betrays so much ignorance and stupidity it boggles my mind.

    Actually, everything in this life was free. Nature provides, free, everything you need to survive indefinitely, and you wouldn’t have to work any harder at that than a hobby a few hours a day. I can throw with accuracy; every day I walk my dog through the woods and I see ten thousand calories worth of birds and squirrels I could knock out of the trees, using free rocks on the ground. Water falls from the sky, free. Everything you need to build a shelter, free. Or a fish trap that can feed a village, or a fire to keep you warm and cook your food.

    The only reason things are not “free” is because of other people, Jake.

    And yes, life is not fair. So what is the point of saying so? It proves nothing. Murder is not fair, but we punish it, and that makes life more fair. Theft, fraud, slavery and rape are not fair, but we have done quite a bit to make life more fair than when nothing was done about it.

    That’s the whole point, dummy! If life was fair, we wouldn’t have to do anything to make it fair. Saying that life is unfair just emphasizes the point that we need rules and regulations in order to make it MORE fair.

    Jake says: And no matter how hard you liberals try you will never make that dream come true.

    And no matter how hard we try we will never be able to stop every murder, and we will never be able to stop all thefts, or rapes, or accidents. So is your premise now that we should not even try to address those problems? That if even one rape occurs anywhere on the planet, we have completely and 100% failed in our attempts at preventing rape and never should have tried such a fool’s errand in the first place?

    What a childish view of the world you have.

    Jake says: The best any of us can do is to empower ourselves to strive for anything better in our lives.

    No it isn’t. That is one thing you can do. You can also empower others to strive for something better in their lives; for example by providing them an education, or preventing their starvation.

    Jake says: I know you would love for me to bend my knee to you liberals and your ever controlling government, but I will not.

    On the contrary; Jake. Stand up. You do me no good on your knee and I have no desire to command you without demanding the same from myself. Put on your work gloves and work beside me, we have people that need our help.

    Jake says: I will not take when I have the ability to do for myself.

    Well thanks, we appreciate that. Fraud and theft of services by people that don’t need them are definitely problems we have, and if that bothers you, perhaps you can give us some help in curtailing that. We will even pay you, you will be ensuring aid goes to those that need it, reducing taxes. Just be sure you don’t throw out the baby with the bathwater, Jake, some people really do need help, and we are looking for law enforcement, not cruelty.

    Jake says: I will not capitulate to your ideals because they are NOT American.

    No, they are American. I am an American. The vast majority of Americans believe in aid, including social security, Medicare and Medicaid.

    I don’t know how you manage to define “American Ideals” that the vast majority of Americans reject! If anything, your ideals are not American, they are the minority view.

    Jake says: Your beliefs belong in places like Russia,

    Why be so specific? I think my beliefs DO belong in Russia, and everywhere else on the planet. I would not advocate for them otherwise.

    Jake says: If you want to blame anyone for no jobs in this country then look no further than your progressive ideals.

    No. Only unchecked greed without regard for any pain or suffering it causes would explain the lack of jobs in this country, and that is not a principle of our ideology, it is a principle of yours.

    Our jobs are lost because our regulations that protect workers, like OSHA, do not exist in some other countries, so workers there can be abused, injured, endangered and killed without consequence by employers. So greedy corporations that care nothing about people or their suffering go there, and successfully manufacture products cheaper than if they were forced to keep workers safe in the USA.

    It is unchecked greed that makes them move there. Abusing and killing people in the name of profit is profitable. That is why we have to punish so many forms of crime in the first place, Jake, because the things we call crimes are very profitable when they go unpunished.

  6. Lottakatz: Thanks for the analysis, it is more than I knew.

    But matches my experience.

  7. “Professor Turley” is showing up in the “Recent Comments” list, but there are no comments in the thread it indicates he commented in.

  8. Insomnia strikes again, so I thought I catch up on a little reading.

    Interesting thread.

    I agree with Blouise and Tony that this is a planned failure and I come to two scenarios: 1) Planned with Obama’s knowledge and 2) planned without his knowledge.

    The first scenario is the most likely if you apply Occam’s Razor. Government contracting is a miasma and as SOTB noted there is (actually quite a lot) of precedent in the IT community for engineering “job security”. In addition, it could just be garden variety incompetence or stupidity. I did catch some of the hearings on the matter and honestly some of those IT guys should be ashamed of their responses.

    However, to address the second scenario and pdm’s “a bridge too far” I submit the following supposition. This can be distinctly turned to Obama’s advantage. I even see the appropriate response from the health care insurance industry playing into this. As they balk at reinstating policies, they give him the leverage needed to push them from the table even further by opening Medicaid as a remedy. If the later, it would be a brilliant play politically against the insurance lobby and would result in Obama being remembered as the President who brought universal health care, leaving the insurance industry no move they’d likely be willing to take as it would significantly harm their profits and that is the true driver of their business, not people’s health. That would not be a bridge too far, but one very well built.

    The proof will be in the eating of the pudding.

    The eating of the pudding is how, if and when the technical side of this problem is fixed.

  9. pdm, I also share your respect for Blouise and Tony and seldom if ever find any disagreement with any analysis either might advance on an issue. This time I think that there is a process failure so deeply ingrained into the nature of the entire contracting process that it literally goes without saying. It is hiding in plain sight if one knows where to look. The problem is that one doesn’t know where to look or how to look, it takes investigative reportage to do that and that is in short supply in the MSM.

    One doesn’t have to speculate that there was a corrupt money-dump on a specific contractor; every contract let is a corrupt money-dump on whichever contractor secures the contract. Looking beyond the normal business of contracting for any meaning or rationale is IMO unnecessary.

    If Congress were serious in their shock and horror they wouldn’t be asking about this contract, they would be asking about the process. But they know about the process, they use it and cultivate it protect it and go to work in it as soon as they leave office.

  10. Lotta, many thanks for the two informative links. I have the greatest respect for both Blouise and Tony, I guess that’s why I’m so shocked that it is their belief that it is a planned failure (and I guess a planned miraculous rescue to come) and that such a plan will somehow work to Obama’s advantage. A bridge much too far for me…

  11. Tony,

    You are making a lot of assumptions. Just because I hate Obama and liberals for using this country for their social experiments does not mean I want the infirm or elderly to starve. I do however expect people that have kids take responsibility for their children and take on the responsibility to raise contributing members of society, just as I have done. As usual your typical liberal attempt to vilify those that do not believe as you do is par for the course from the liberal handbook.

    There has been one time in my life that I could not find work and I turned to my family and to my church for help and support. It was the most shameful thing I ever did to go and ask for help. For two weeks I borrowed from family and volunteered at my church and my family and church saw me through that time. But you fine liberals have taken shame out of being on the government rolls. Nothing in this life is free and absolutely life is not fair. And no matter how hard you liberals try you will never make that dream come true. The best any of us can do is to empower ourselves to strive for anything better in our lives. I know you would love for me to bend my knee to you liberals and your ever controlling government, but I will not. I will not take when I have the ability to do for myself. I will not capitulate to your ideals because they are NOT American. Your beliefs belong in places like Russia, but here in America we KNOW how to do for ourselves. If you want to blame anyone for no jobs in this country then look no further than your progressive ideals. Your political ideology has closed more business in this country because over regulation and over payed incompetent unionized workforces.

    You calling me angry does not bother me one single bit. I am angry, angry at what you liberals have done to the best nation this world has ever seen. And that majority you speak of is only a majority in the slightest bit. When people realize, as many are now, that the lies the President told them about the ACA your majority is going to dry up.

  12. Tony C and others: ‘Corruption was built into the contract.’

    Of course it was but not perhaps in the way you envision. All government contracting is corrupt, it has never been cost saving for the taxpayer and the OMB has known and stated that for decades. It’s worse than that now because the ability to get contracts is a business speciality in itself. There are business’ that offer training in just that field. This is actually reflected in the offers to contract and contracts themselves; the number of levels or embeds is often stated in the language -no more than X numbers of subcontractors between the primary contractor and the sub-contractors delivering the goods or services.

    I recall reading during the Katrina clean up that some contractors were being looked at because the contracts were let at some outrageous @ton (of debris) cost, like $45.00 and the contract capped the embeds at 3 but primary contractors were embedding 5 layers deep and paying $5.00 @ton to the people doing the work.

    Ther are a couple of articls I read about the ACA contracting that illustrate the point exactly:

    “But Sunlight reviewed contract award information from USASpending.gov and FedBizOpps.gov, and found 47 organizations that won contracts from Health and Human Services or the Treasury Department to manage, support or service the implementation of the Affordable Care Act. Among them were top contractors like Northrop Grumman, Deloitte LLP, SAIC Inc. General Dynamics and Booz Allen Hamilton. All five of those companies provided information technology services to either the Centers for Medicare and Medicaid Services or the Internal Revenue Service, the two agencies tasked with building back components of the health insurance exchanges.

    All but one of the 47 contractors who won contracts to carry out work on the Affordable Care Act worked for the government prior to its passage. Many–like the Rand Corporation and the MITRE Corporation–have done so for decades. And” continues

    http://reporting.sunlightfoundation.com/2013/aca-contractors/

    And this article connects the dots:

    “… Development Seed President Eric Gundersen oversaw the part of healthcare.gov that did survive last week: the static front-end Web pages that had nothing to do with the hub. Development Seed was only able to do the work after being hired by contractor Aquilent, who navigated the bureaucracy of government procurement. “If I were to bid on the whole project,” Gundersen told me, “I would need more lawyers and more proposal writers than actual engineers to build the project. Why would I make a company like that?” These convolutions are exactly what prevented the brilliant techies of Obama’s re-election campaign from being involved with the development of healthcare.gov. To get the opportunity to work on arguably the most pivotal website launch in American history, a smart young programmer would have to work for a company mired in bureaucracy and procurement regulations, with a website that looks like it’s from 10 years ago. So much for the efficiency of privatization.”

    ” but an examination of the expertise base of the main private contractors shows that the same firms keep appearing in different sectors … The expertise of these corporations, their core business, lies in knowing how to win government contracts, not in the substantive knowledge of the services they provide. … This explains how and why they extend across such a sprawl of activities, the only link among which is the goernment contract-winning process. Typically” continues

    http://crookedtimber.org/2013/10/15/neo-liberalism-as-feudalism/

  13. Well I guess my comment won’t be released from the spam filter… I thought it was well written (of course – right? 🙂 ) I didn’t use any cuss words – I think.

    Tony C. When I look at it that way I totally see your point. I have seen that type of IT scam executed back in the day when I was there. And from major Fortune 50 to 500 companies too. It was kinda’ SOP I think. The coders called it “job security”. Maybe that’s why we had Phoebe setting up shop in one of our skyscrapers downtown. When they showed up day-1 they promptly took down our Ethernet LAN with their TOKEN-RING cards (they had interfaces they claimed would connect to RJ45)! Tried to tell them to just wait until our infrastructure techs could set up a router for their little remote spy-office. This was during the days of Louis Freeh and his desire to tap into major corporations networks via back doors.

    Blouise – I feel your pain. Just trying to follow that Physics professor and Gene H. was daunting for me. My brain is still smarting from the experience… 🙂

    Yes I remember when a computer filled an entire floor of a building. And used Hollerith Punch Cards or IBM cards or punch tape. Come to find out IBM was using those punch cards back during WW2 but for Hitler not USA. Guess what they used them for? Another bad legacy for IBM?

  14. Law Signed by George Washington May Convict Obama Fraud Conspirators

    Document Expert: Obama Basically Bought Off NBC / MSNBC
    Forger Knew Obama As Kid (states is a woman)
    Misprision of a Felony – Misprision of Treason
    “From Forgery to Treason”

    Typesetting Expert Doug Vogt discusses his latest legal efforts to prove that Barack Obama’s birth certificate is a forged document.

    Doug also discusses a little known bill signed into law by none other than President George Washington. This law may convict many of those who have conspired to help cover up Obama’s fraudulent documents?

  15. ‘I think this will be forgotten about as much as “Monica Lewinsky” and “it depends upon what the meaning of the word is is.”’ (davidm2575)

    How right you are which is why Bill Clinton can’t draw a crowd today and is just so piss-poor at fund raising. The Monica thing did him in. (I have nooo idea what Terry McAuliffe was thinking when he used Clinton in Virginia.)

    And I understand your angst. After all your guys, Bush and Cheney, can’t even leave the country. It’s sooo unfair.

    But … she lowers her voice to a whisper and furtively looks left then right … we all know it’s a plot by those godless liberals and atheists to deny republicans their god-given right to rule. Carry on Christian Soldier … the War on Christianity has begun and you must fight the good fight!

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