I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. This week, President Obama went even further with the announcement of a new sweeping exemption that not only has no foundation in the federal law but directly contradicts the law. It also happens (again) to be a change debated but not accepted by Congress. The exemption appears an effort to blunt growing criticism of Obama for a false assurance given to citizens before the enactment of the ACA. It is also coming at a time of new polls indicating that Obama is not only hitting a record low in popularity but Republicans appear poised to gain seats in both houses (and potentially could retake the Senate as well as add seats in the House). [Update: The White House is now denying that it will implement the hardship exemption despite the article in the Wall Street Journal and other media]
The individual mandate has long been the most controversial part of the ACA. That controversy magnified after millions of people lost their insurance plans despite assurances from Obama that no one would be forced to give up plans that they like. Even the Washington Post declared the statement to be false and a case of consistent and repeated misrepresentation.
The political damage over the ACA is clearly growing. That damage was greatly magnified by the mismanagement of the rollout by Health and Human Services Secretary Kathleen Sebelius and her staff. Such political costs of federal law however are not a basis for regulatory changes, even when such changes are allowed under the federal law. In this case, the President has far exceeded any plausible claim of statutory or regulatory authority. The individual mandate is the heart of the ACA and was the subject of heated and careful drafting. There is no provision for an exemption, but Obama has now rewritten much of the act with a series of extra-legislative changes — no fewer than 13 such executive changes to the law.
This last change will allow virtually anyone to avoid the individual mandate requirement — precisely the option that the White House successfully blocked when proposed in Congress.
The new change would allow individual to claim a “hardship exemption” to avoid paying a penalty for not buying insurance. That would fundamentally change the operation of the law. Not only does this contradict the law but the Administration fails to clear define what a “hardship” would be. It only says that such an exemption can be claimed if citizens “experienced another hardship in obtaining health insurance.” It seems designed to allow the maximum number of people claim the exemption, particularly given the rather forgiving standard that the person should “submit documentation if possible.”
The President continues to operate well off the Madisonian map — inventing exemptions and granting suspensions where no provision is made under the law. Most importantly, he is ordering changes proposed and rejected in Congress.
These changes are unlikely to receive serious judicial review if past cases are any measure. The Administration has repeatedly relied standing challenges to block review. Since the Rehnquist Court, standing has steadily shrunk to the point that constitutional violations are now being left unreviewed for lack of standing. The courts have long been, in my view, absent without constitutional lead as discussed in prior testimony (here and here and here).
Democrats continue to enable this shift of power to the Executive Branch with no concern for the changes that they are making to our balance of power. They continue to yield power to the Executive Branch even as evidence mounts that they are headed to a possible electoral disaster. It is the ultimate example of personality overwhelming principle. It is not just incredibly short sighted but self-destructive. A future president can easily claim the same inherent authority to suspend or grant exemptions to environmental or anti-discrimination law or suspend tax burdens for the top one percent. It would also mean that a president is virtually unlimited in being able to amend or suspend laws. It makes the legislative process merely a discretionary stage for presidents.
The animus toward the Republicans is blinding Democrats to the implications of what President Obama is creating in this new uber presidency. The President is appealing to that animus in taking these steps and aggrandizing power in his branch. It is part of “all is fair and love and politics” approach to constitutional law. It would take offline the stabilizing elements of the system and reduce the system to little more than raw muscle plays by politicians. Under our current system, there is only so much harm that any branch can do if it remains within the constitutional lines. It is designed to be idiot-proof and we have truly tested that design. However, once one branch goes outside of the lines, the system is left as little more than politics at any means.
While there will be many who applaud the latest insular change either for its political or practical benefits, it will join a troubling mosaic of unilateral and unchecked executive power. There will come a day when people step back and see the entire mosaic for what it truly represents: a new system with a dominant president with both legislative and executive powers.