Congress, Constitutional Law, Politics, Society

A Government Unto Himself: Obama Administration Creates New Sweeping Exemption Under The ACA [UPDATED]

President_Barack_ObamaI 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.

237 thoughts on “A Government Unto Himself: Obama Administration Creates New Sweeping Exemption Under The ACA [UPDATED]”

  1. Jill,
    LOL
    Instead of LGBT people as your example just use the 300 million Americans spied upon. Did Congress repeal the Fourth Amendment? They did pass a Patriot Act and, as Michael Murry noted above, it’s Orwellian by nature and the purpose is to get the average Joe to nod in agreement, “See, it says Patriot right there in the title so that means it’s patriotic to spy on Americans.”
    So the agencies under the charge of the White House interpret just that. And do so. There’s only about 9 million of us that this Patriot Act hasn’t reached, ya know.

  2. I’ll include in my next phone call to my House Rep:
    “I know you voted for the ACA. I’m curious as to where I can find your vote on the amended aspects of the ACA? You did vote to expand coverage of bad plans, didn’t you? Did you? How’s THAT anything resembling Law making?”

  3. One needs to look long and hard to see anything that this president has done to make America a better country. His legacy will be forever about how he made America weaker.

  4. nick
    “Yea but bush… didn’t want affordable Health Care for all.”

    LOL

  5. Professor Turley has studied and taught The US Constitution for years. He has argued his many cases in defense and support of the Constitution. I am happy to see the Lone Ranger (Mr. Turley) has put his party affiliation aside to alert the public of the danger our country faces if we continue to defend this executive offender, or stick with our partiality to our chosen party and not support the constitutional documents that have made our country the envy of so many other countries.

    The big and main question is, WHAT CAN WE DO TO CORRECT WHAT THIS PRESIDENT HAS DEMOLISHED IN REGARDS TO THE CONSTITUTION?

    It is time to take off the rose colored glasses that this president is going to make the U.S. great. HE HAS NOT AND IS NOT GOING to contribute to making this a better country to live in. During his five years in service, he has thrown good money after bad with his bailouts, his empty promises, his idea of helping the poor, his failure to educate the poor and train for jobs. His idea is to pump more money for welfare without really helping the poor. He shoved, kicked, and pushed a healthcare bill through, without knowing what was in the bill, nor having a committee to work at getting it right. He hasn’t been transparent, he didn’t close GITMO as promised, he didn’t bring all our soldiers home as promised, , he didn’t get the economy on its feet as promised and he hasn’t improved education as promised. Pull him aside and ask him about CORE Standards, and he wouldn’t be able to tell you what’s in it. In the foreign policy arena, he is a joke. He has lost trust and respect from most of our foreign allies, and he has made our country laughable to the enemy. The negatives go on and on.

    Show me what good things he has accomplished–please, I’ve racked my brain trying to find something to give positive credit to this guy. Even Prof. Turley says he likes some of his policies–what policies?

    To those liberals all I’ve got to say is that you voted him into office TWICE without enough experience. He never did anything significant in Congress. You didn’t know him, he was never properly vetted, but he was black and Democrat–and that’s all you cared about. The best thing I can say for him is that he’s a suave and debonair sweet talking bamboozler, who has pushed for a socialistic society–and is coming awfully close to changing our country in that direction.

  6. “Corporations United,” means citizens divided and marginalized. Way past time to stop taking cynical Orwellian euphemisms at face value.

    And Professor Turley has become positively hysterical in demanding that the Democrats stop toadying to the Republicans and actually start behaving like an independent party with lofty principles instead of the junior corporate faction of the Property Party that they became under Bill Clinton. No meaningful politics left of right exist in the United States, and so Professor Turley should stop fantasizing that any such counterbalance to corporate totalitarianism — or crony corporate crypto-fascism — will somehow ride into town on a white horse and save the day. With the Democrats and President Obama so pathethic and useless, better to demand that the Republicans show some class for a change and actually do something beneficial for the country.

    Now if only Presdient Obama would get an illicit blow job from a White House intern, then Professor Turley could call for his impeachment. We all know how well that workded out the last time.

  10. Veronica,

    I was just wondering what the principle you held was behind what you are saying. What I hear from you is that you agree with Obama on this issue. You strongly feel he is doing the correct thing. You think that Congress is stopping his excellent plan from working. Because Congress won’t do what Obama wants, you feel Obama needs to go around Congress and make the law he wants in place, be in place.

    So I wondered how you would feel if our nation elects a fundamentalist Christian to office who hates LGGT people. He feels, and the people who elected him strongly feel that it is not acceptable to have LBGT equality in the US. Congress is not going along with the president on denying LBGT equality. The majority of people feel strongly that the president is correct, just as you feel the current president is correct. The president creates his own law denying equality to LBGT people. The president says he is giving more rights to straight people, so he is increasing their rights and benefits.

    Would you object? If so, what is the basis of your objection? You just said the president has the right to unilaterally create a law that you approve of. What happens if another president creates a law you don’t approve of? What if this president is also black, perhaps even a black female. Would you be a racist if you objected to the president making a law?

  11. Pingback: Obama in Blunderland | danmillerinpanama

  12. and even Fox news has said the policy cancellations were a result not of the Prez but of the private insurance companies. http://www.foxnews.com/opinion/2013/11/05/insurance-cancelled-dont-blame-obama-or-aca-blame-america-insurance-companies/
    This seems to be more a screed against the president and the democrats. The “animus” towards the republicans is deserved. If they did the work for which they were hired the president would not need to enact executive orders, less then George Bush and other presidents by the way. Their obstructionism, from the first day of inauguration is what has brought us to this point.

  13. Raff,

    I really think Obama is fairly intelligent…. I think he’s getting thwarted every turn he takes…. Unlike Clinton…. He’s not politically acute to expect the unexpected…. He gets no free passes like the idiot bush got…. He ran on the issue of transparency…. I did not vote for him… I voted Nader…. I defended his right to do what was necessary to get things moving in the right direction…. But when the platform became no worse than the rest… I didn’t feel compelled to defend him anymore….. Some actions that he gets blasted for I will stand up for him…. Other actions…. He’s on his own….

    All along Jill was saying not to trust him…. I like lots of others was willing to give him benefit of the doubt…. I am just amazed at how far down he will go to exercise office…..

  14. Justin : ” it is how he is doing it. There are laws, and those laws must be respected. He doesn’t get it”
    I am NOT seeing anything untoward in what the President is doing – when Bush just went into Iraq with NO lawful reason – THAT was illegal – I stood in front of my TV aghast saying “what on earth do they think they are doing?”
    IF the Pres’ IS doing something unconstitutional – then impeach him – but no one has really got that evidence have they ? Just another big waste of everybody’s time – sickening !!

  18. Don’t worry, be happy, the House just voted for the 52nd time to repeal, stomp, pinch, cut, maim, and destroy health care for Americans (a.k.a. ACA). After 52 rounds these competent marksmen surely hit their target in the U.S.eh?

  19. Veronica:

    “Eleazor : “He will get away with it because it is what the people want. ”
    SO – that’s something that should be STOPPED eh ?”

    The end does not justify the means.

    As difficult a thought as it may be for democratic partisans, Obama will not be the last President. If the system is subverted then at some point all that will matter is sheer power and the republic that has so long protected Americans will be gone.

    I applaud Turley for his greater love of Constitution than party goals. I wish Republicans had had the same conviction in past years and that Democrats today in Congress would as well. Neither have. They have, as you do, more desire for what they each perceive people want today than for the security the people will need in future years.

    This short-sighted vision will, if not corrected, one day leave the beautiful painting that is our Constitution as dim as the document itself currently is under the protected glass.

  20. Justin, As you know, when you’re an independent, both sides think you’re “With them.” Tiring and tedious, isn’t it?

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