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.
Annie, I here is some information to look up. Check out Jeff Sharlot on “The Family”. I think you like Maddow– she interviewed him. It’s fundamentalist and it’s non-partisan. It’s even world wide.
OF COURSE I wonder. I did not toe for him in 2012. I still will not ever vote for a Republican, UNLESS they drastically change their platform.
Annie, I’m a person who has consistently held positions no matter who is in office, from what party. You did not, nor will you ever see me change my positions because of my affiliation with a party. So no, I am not a partisan.
bfm, Obama wanted this plan, it’s exactly what he asked for. Why do you think Obama is supporting a Heritage Insurance Plan? It’s Romney care–a known failure as far as getting people health care and keeping people from going bankrupt. Why on earth is that the plan Obama supports? Don’t you wonder?
As to Republicans opposing the plan–yes, what is the problem. Does it need to go back to being called Romney care? I think what we are seeing is one party giving the two party dog and pony show. It’s really the only explanation which makes sense. This is a pro-corporate bill.
” Why on earth is that the plan Obama supports? Don’t you wonder? ”
Despite his campaign talk, Obama’s economic policies are right of center.
Obama talks like he is transformational.
If anyone has not noticed, a comparison of Obama’s senate and campaign positions with his administration policies demonstrate that Obama is an opportunist with a clear understanding of where the money and power lie.
For many of us the question is not whether Obama supports our principles. The question is whether we can exert enough pressure that he will support some of our positions. That’s a maybe.
Jill, I suspect you are far more partisan than you claim.
Jill, not NEARLY so much as in the Republican Party. You cannot seriously believe that Democrats are driven by the Religious Right as are Republicans. All one has to do is look a who donates whose campaigns. Where does the Religious Right’s money go?
Annie, I can’t agree that Sanders, who is actually a socialist, is principled, nor do I think Warren is principled (although she has a wonderful propaganda machine behind her and may well be Advertising Age brand of the year in 2016). But I also do not think I could ever convince a strongly partisan person that perhaps it is not very helpful to worry so much about elections. So we will just part company at this point of disagreement.
Jill, Bernie Sanders, Elizabeth Warren, Democrats. There are other principled Democrats that I would choose any day over most any Republican. I will vote for anyone who would further issues hat I feel are essential to a succesful society. So ga Republicans have made a MUCH MUCH worse showing than Democrats. Since there are two parties, I will vote for the one that most closely is aligned with my own ideas for a society that benefits all, not just the rich.
Annie, again, you seem to be unaware of how religiously right many in the Democratic party are, to include the president. Obama said he wanted to bring the Kingdom of God on earth. He supports a military which openly calls for a religious crusade against Muslims. That’s about as fundamentalist as it gets. However, his overlords are equally religious in this way.
I guess it must be important for people to believe in their party but I really think this is a distraction to understanding what is going on and how to confront it.
Annie, certainly support the person of your choice who will help in bringing about universal, single payer health care. However, I am not sure why Democrats believe so strongly that Democrats will protect women’s reproductive rights. It really depends on the Democrat. Obama took the ability to obtain insurance which would cover abortion away from the poorest and sickest women. He is a Democrat.
So I would suggest to stop worrying about party affiliation and look at actions. It’s a big distraction from work that needs to be done.
Oh yes, let’s not forget freedom from religion, separation of church and state. Where does the Religous Right stand on those? How about discrimination against homosexuals? Gays in the military, where did they stand on that? Equal pay for equal work, Lilly Ledbetter ring a bell?
Outside of sports, I’ve try my darnedest to stay away from comparisons. However if Obama and company allow the fundies to control both houses in 2014(and further demolish the state houses), can there be any worse?
Sadly, Jill. I agree. However there are Democrats in Congress right now that with the correct leadership would change that and reintroduce Medicare for All. Not any Republicans signing on to anything that resembles a Public Option. NEVER will. That is one of the reasons why I will continue to be a Democrat, and any woman who thinks the Republican Party will defend their reproductive rights, think again.
Jill,
The establishment GOP and DEM gave the insurer the reform they wanted, not needed…
Jill,
I’m just trying to give you and I some hope…
Veronica
“but no one has really got that evidence have they ?”
He’s got the 9000 pages hidden. Torture.
Cover for the sins of his father, Bush.
Can we say Obstruction of Justice?
How can the Senate give the President a report to declassify based on evidence with held by the President, never reviewed by the Senate?
Max-1, are you sure there are 9 million not spied on!
Annie, how did Republicans and Democrats help health care reform? They didn’t!
Giovanna,
Obama is not a socialist. If you go to the socialist party sites you will see real criticism of Obama’s policies, especially concerning health care but also foreign policy (and many others). Obama is a corporatist. He counts among his advisors, appointments and best friends, not one socialist, but many corporate leaders. Someone gave Jamie Dimon a pair of presidential cuff links which he wore before his Congressional hearing! Our nation is closer to something like fascism than anything else.
I say this because the idea that Obama is a socialist is, I believe, very successful propaganda used against the public so we cannot see the truth. (I am not accusing you of using it as propaganda. I’m saying it is used as propaganda.) People on the right and the left believe it equally, even though it is completely counter factual.
Obama told Congress what he wanted in that bill. He even had advocates for single payer banned from all meetings and finally, arrested at the WH. So I can’t agree that he did not know what was in his bill. There’s another thing you may never have heard of with this bill. That is the Christian Health Care exemption.
Only a few companies, high paying donors to the political class, received this type of religious “rights” exemption in the bill. It gives a pastor who oversees your plan the right to determine whether you have given the proper tithes, attended church long enough and often enough, that you don’t get pregnant, etc. or your policy is then canceled. This happens only after you have paid enough premiums to get the owners quite a bit of money! This exemption was so well tailored it could not have come as a surprise to Obama or the Well point executive, turned Max Baccus staffer who wrote the bill.
The health care bill helped insurance corporations get new customers. Congress had actually put out a single payer, universal health care idea, but it was the WH who slapped that down. Single payer, universal care would be closer to what you are calling socialism. Those are the people Obama had arrested. He’s not a socialist!
Exactly right, liberals wanted a Public Option. However money spoke louder than principles. How did Republicans help reform health care? They didn’t.
” How did Republicans help reform health care? They didn’t.”
I think the fact that ACA is a rehash of a plan devised by a right wing think tank and the GOP intransigence on ACA gives a lot of support to the idea that GOP has lost its way by opposing everything proposed by the administration regardless of principle, application or effect.
The party of ideas has become the party of NO.
That is really too bad. Democracy works better when parties put forth their best ideas and compromise to implement practical solutions.
Without public campaign reform and striking down the nonsense that money is the same as free speech, this country’s gallop into the swamp of history can only get worse.