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-you responded to my comment stating that Obama is not a socialist. I beg to differ with you. Perhaps I should have said Reformed Marxism. If you compare President O to Germany’s Social Democrats, or the French and Spanish Socialist–he is ABSOLUTELY a socialist. Just as these groups of people promote a welfare state, so too does our current president.
    A reformed Marxist:
    * Favors universal health care and education
    * Progressive taxing
    * Redistribution of wealth
    * No incentive to succeed
    * protection of all people through welfare and food stamps
    * extended unemployment benefits without retraining and incentive to work
    * taxation to coerce businesses to promote socialist brand of “general welfare”
    * state run everything
    All these Marxist ideas are on Obama’s agenda
    Obama also wants more Carbon taxes, higher energy prices, restrictive drilling at the cost of jobs and growth. This is Socialism at it’s best.
    Obama is also chipping away at religious rights, degrading the constitution by running the government his way.
    Even his friends and connections lead him to Marxist company. It time to connect the dots and realize he truly is a “Reformed Marxist.”

  3. Evidently, all the time debating the law could have been 5 minutes and 2,600 pages less. Simply stated, the law should have merely said, “The President shall be empowered to create and change any and all laws pertaining to all heath insurance in the United Sates of America.” Is that not what we got?

  4. Congress is a self morphed entity which cannot tie its shoes. While we don’t need them to spend time making new tax breaks for the Koch Brothers, we do need them to vote on nominees for judgeships or for executive jobs. If they sit on nominees for a year then we need more recess appointments. Presidents get criticized for Recess Appointments but critics like Prof. Turley do not criticize Congress for being out of the Halls of Congress. I do not know if the cathouses are on C Street or K Street in DC. I am sure that the Professor would know. But, we need to have some observers on the street to film Congressmen with their lobbyists and hookers. As someone who is an outsider to DC but who visited a few times, I cannot recall the correct name of the street that we frequented at night but we were not yakking with lobbyists. Yet the hookers seemed to know a lot of Congressmen and their staff. Since Congress has pretty much abdicated its role in approving judicial nominees and executive nominees, maybe that portion of the Constitution needs to be amended. Maybe let them impeach a judge but not approve an appointment. They never seem to want to do either.

  5. annie, They seem to invoke the “rule of law” rather selectively…..obamacare, marijuana and immigration law enforcement.

  6. Swarthmoremom,
    That’s a bit of a twist for Republicans, I thought in principle, they were all for allowing states to make their own laws regarding such things. Once again it seems that if Obama is for something, they come out against it. They should enforce their own principles.

  8. For all of the complaints about partisan deadlock in Congress, there has been remarkable cooperation between Democrats and Republicans in the willingness to cede power to the executive branch. This process has occurred over decades; it did not begin with the Obama presidency. When we elect weak and fearful individuals to govern, they will gratefully surrender their authority, and the accompanying responsibility, in times of perceived danger. That is why the transfer of power accelerated during the Bush/Cheney years in the aftermath of 9/11. So while the executive branch carried out programs of torture, rendition and secret prisons, Congress sat on its collective rear end and pretended that all was well in the Republic. President Obama ratified the lawlessness by continuing many of the same abuses and declining to even investigate the crimes committed in our name. And when congressional Republicans decided that the Obama presidency should not be permitted any legislative accomplishments, the President ultimately decided that he would act without legislative validation.

    And that is where we are. Forget the nonsense about socialism and citizenship. The President is not a socialist and he is not the antichrist come to destroy a Christian nation. Indeed, there is no left left in this country. The importance of the notion of separation of powers is its function in preserving the rule of law. And the rule of law is all we have.

  9. The solution is this: national ID. And right away I know what you’re thinking: SS storm troopers goose-stepping up to innocent citizens and barking, “Papers, please.” Tea partiers fret that a national ID requirement would be an intolerable expansion of government. Civil libertarians worry that it would be an intolerable invasion of privacy. “We’re not only talking about fingerprinting every American, treating ordinary Americans like criminals in order to work,” American Civil Liberties Union legislative counsel Chris Calabrese told [1] the Wall Street Journal. “We’re also talking about a card that would quickly spread from work to voting to travel to pretty much every aspect of American life that requires identification.”

    That sounds scary. But step back for a moment and listen to Anantharaman Muralidharan, a native of Singapore writing a few months ago about the identification card required of all residents there. It “doubles as a library card, it serves as identification when I apply for overseas visas or want to open a bank account. Someone’s IC also allows me to identify the other party if I get into an accident.” Hear any SS overtones? I don’t.

    And it’s not just Singapore. Most European countries produce ID cards for their residents, and they’re compulsory in Belgium, Germany, Italy, and the Netherlands, among others. This hasn’t turned any of those countries into police states, and it’s not likely to in the future. Here in the United States, each of us has a Social Security number, and most of us have a state-issued driver’s license—and those two things are enough to allow the government to monitor and track us already, just as easily as if we all had national ID. As Robert Kuttner, cofounder of the liberal American Prospect, notes [2], “The real issue is not whether government and business collect databases on citizens”—they already do that—”but whether there are adequate protections against abuses.”

    The reality of national ID is really pretty simple: It’s just a way of identifying people. It’s not a way of stopping terrorism. It’s not a way of stopping identity theft. (The critics are right about that.) But it would be a way for employers to make sure they hire only legal residents. It would be handy for the poor and the unbanked who don’t have ready access to secure ID. It might even make emergency medicine easier if it allowed more reliable access to digital medical records.

    dog voting [3]
    Charts: UFO Sightings Are More Common Than Voter Fraud [4]
    What Happens When Digital Voting Machines Fail? [5]
    Why a National ID Card Is the Quickest Way To Put the Voter Fraud Wars Behind Us [6]
    The Dog That Voted [7]
    The GOP’s War on Voting Comes to Washington [8]
    Rick Scott Concerned About Non-Citizens, Citizens Voting [9]
    But its greatest advantage might come at the ballot box. With a national ID card, voter registration—whose only purpose is to ensure that you’re eligible to vote—is a thing of the past. Just show your ID, which confirms that you’re 18 and a citizen, and you get to vote. If you’ve moved, all you need is your ID along with evidence of your new address. If states want to prevent, say, felons from voting, it’s up to them to make lists of ineligible voters for poll workers. But the burden is on them.

    In a functioning national ID system, the government should go out of its way to make ID easy to get. At a designated age—maybe 16, maybe 18—you get your card. If you have trouble with your birth documentation, the government helps you. If you lose your card, it gets replaced. Cards are available at every post office and every federal building. Live in a small town that has neither? No problem—roving ID-mobiles roll through each village and hamlet once every month or two.(and it would be free for people in poverty!)

    Who would do all this? The Commerce Department doesn’t really have much of a mission anymore [10]. This would give them one. If not Commerce, maybe State or Treasury.

    Instead, we’re barreling headlong toward the worst of all possible worlds: a system with all the downsides and none of the upsides of true national ID. The 2005 Real ID Act [11] requires all 50 states to tweak their driver’s licenses to meet federal standards on things like machine readability. The states hate it, implementation has been postponed three times, and when (or if) it’s all said and done we’ll still have 50 different cards managed by 50 different bureaucracies. What’s the point? If we’re going to do this, we’re better off doing it right. National ID can be simple, convenient, and free. And it would make cries of voter fraud a thing of the past.

    Source URL: http://www.motherjones.com/politics/2012/07/national-id-card-voter-fraud-solution

  10. … Based upon the language of Article II, Section 1, Clause 4 we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, REGARDLESS of the citizenship of their parents.

    Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.” The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.

    http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf

  11. Veronica, Our “upper class” includes those of the career political elite, union bosses, corporate cronies and the various lobbyists. A specious argument that voter ID would repress voting. Voter ID should certainly be no deterrent to folks voting. One needs an ID to do just about anything, including going to a doctor and getting medications. Please look at this issue objectively vs. through the talking points.

  12. Veronica: If one branch is failing its constitutional duty, the solution is not to have another brance breach its constitutional obligations. Two wrongs do not make a right, they double the wrong.

  13. Professor Turley, where were you when the President was a candidate? Please correct me where I am wrong. I heard a rumor that a candidate for the highest office in the land was required by the Constitution to be a “natural born citizen” which was defined in the “Law of Nations” as a citizen with two or both parents who are citizens in order to “avoid foreign allegiances.” It was said that the Founders transposed the phrase to the Constitution from the “Law of Nations,” the major law text of the era, from which they learned as law students, which was accepted throughout the Western hemisphere. Certainly and unequivocally the candidate had a father who was not an American citizen and who absolutely was a citizen of a foreign country with the aforementioned attendant “foreign allegiances.” A consequence very well may be the current turbulent state of global affairs.

  14. Congress is lame. It is an easy phrase. Congress is lame brained as well. Even with the short amount of time they actually spend On The Hill, they can not even vote up or down on nominees to Executive positions or to Judiciary positions. They can not put together a budget. The claim that the President is being heavy handed is like saying a guide dog who picks up his human who fell on the ground is heavy pawed. If the President does not implement Executive actions then nothing gets done. Then the RepubliCons will say that he was a do nuthin President who is only half white. I would like the President to ask Congress to repeal their law which gives them free medical care for life. They need to be on the streets with the rest of us. If I was President I would address some of the lame Congress practices by calling Special Sessions when they are off on holidays. This country is going to hell in a hand basket and it is not the fault of the President. It is the Do Nuthin Congress, the DNG.

  15. annie,
    Dr. Martin handed Sen Burr him a roughed up arse…
    “I know that there are 45 thousand in America who die waiting because they don’t have insurance at all.”

  17. Max
    I was wondering the same thing. I think he has no principles and will go whatever way he thinks will benefit him. Although he did surprise me when he yelled at The TeaPublicans, “Are you kidding?!!” That was awesome.

  19. I wonder if Mr. Boehner will pull a Pelosi and declare accountability off the table…

  20. Oops, moderation of Conyers book on Amazon…
    … Never made it to best seller. Wonder why?

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