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 wrote…

    “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.”

    Jill, how do you know this? This is completely the opposite of what Obama promised the American people. It can’t be true, can it?

  2. Obama is not a socialist. If he was the American people would have affordable healthcare, homeless people would be sheltered, the hungry would be fed, the elderly allowed to retire, students would have good public schools, city infrustructures would be maintained. No, Obama is NOT a socialist. Look up the word and learn the meaning. Socialists want the entire society to be healthy. America will never be a socialist society as long as money controls the government to the benefit of the super wealthy leaving the rest of us to die off.

    If Obama is increasing the powers of the executive branch just so he can get laws through the do nothing congress – then before he leaves office, it seems logical that he would reign that power back in so the “balance” is restored in our system. If his true intentions are to create an executive branch with unchecked power he will leave the door wide open for abuse by the next president.

    As long as big money controls US government, nothing will change no matter who gets elected.

  3. Mike Appleton, by what authority do you ignore the language of the “Law of Nations” which you certainly understand (i.e. parents). By what authority do YOU declare that the Founders did NOT study, reference and accept the “Law of Nations?” By what authority do you declare English common law a differing basis for eligibility influencing the Founders? If I can read English, Vattel described the phrase “natural born citizen” as one whose parents (i.e. plural) were citizens. Would the Founders have considered the “Law of Nations” or spontaneously generated the phrase “natural born citizen” in the same decade? Seriously? You can torture the words of the Founders and those they learned from but you can’t change the English lanuage, unless I’m missing something.

  4. Angelfoot, the subject is not the first seven presidents, the subject is the current one, the one in my lifetime and our relationship to the Constitution. That erroneous “decisions” were made in the past does not interest me. Are you sure you’re not missing the “time of adoption” phrase. Please eddify me; thanks.

    “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”

  5. Most the bills the House proposes never make it to the Senate floor, they are stopped by Harry Ried. You say a do nothing congress get your head out of your A$$.

  6. John,

    By your logic the first seven presidents were illegitimate. Why, the very legitimacy of the constitution is in question!

  7. John:

    I’m afraid that you’re about four years late to the natural born citizen party. That debate was played out ad nauseam on this blog. Search the archives if you’re interested.

    Vattel’s work was primarily concerned with relations among nations. Our concept of citizenship was not derived from continental law, but from the common law of England, as one would expect. You’re better off reading Blackstone and early American treatises on the issue.

  8. Jonathan, how do you respond to this from the above mentioned Media Matters article:

    “The hardship exemption was written into the ACA at the law’s outset, with the intention of exempting certain individuals from the shared responsibility payment — the “individual mandate.” As the law was written, exemptions and exclusions from this penalty would be granted to a range of groups in addition to those experiencing hardship and an inability to find an affordable plan…

    However, as HHS has repeatedly warned and the non-editorial side of the WSJ reported, an application with a declaration of hardship does not necessarily guarantee an exemption. It must be reviewed and approved before an exemption certificate is issued. Like other government attestations, this exemption application form requires a signature under threat of penalty of perjury and the various categories of hardship have differing documentation requirements.”

    WRITTEN INTO THE LAW. I mean, seriously I have lost so much respect for you, “Even the Washington Post…” – that Liberal bastion! Ha! – linking to Hot Air? Cripes! You are letting your passions get in the way of reason.

  9. John,
    Can a Nation build bridges with workers dying from diseases?
    What do you say about State University Hospitals?

  10. Giovanna,
    “degrading the constitution by running the government his way”
    I found something to agree on!

    The rest, hogwash.
    He’s a Corporatist… borderline Fascist!

  11. annie,
    The ‘States Rights’ argument is predicated on a few basics:
    Oppression of minorities and women. Oh, and the NRA!

  12. “SO – that’s something that should be STOPPED eh ?” Yes- the United States *is not* a democracy and *does not* operate on the basis of a majority vote. The United States is a republic. The difference is not merely semantics.

  13. Eddie Stinson, please read the “Law of Nations” circa 1758 below. For Christ’s sake man! Do you know truth and fact? What version of corruption would you like us to accept? Because judges make corrupt “decisions,” the Constitution doesn’t say two or both parents? Kennedy wasn’t shot from the front either, right? The Founders learned and transposed from this legal reference of the era. You “interpret.” Where in the Constitution do you elitists get that right? America has been deprived of the freedom literally extant in the very plain and simple English employed deliberately by the Founders. Read it. Try the Preamble. It limits government to security and infrastructure, promoting the General Welfare while deliberately excluding individual welfare or redistribution in any form, while securing for ourselves the “blessings of liberty” which are our private sector endeavors, businesses and industries, including those of education, charity and healthcare, without interference from any government. Alas, no “commoner” is capable of reading English or understanding it according to you. Oh hell no! We can’t read English.

    “Law of Nations”

    “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

    Excuse me, it’s my passion.

  16. Mike A.,

    Bingo…. If we don’t have the rule of law…. We have nothing left to fight for…. Spot on with power being ceded all along….

  18. Nick, it’s just not one moon-bat politician and that’s why “they” has been used. But I sincerely appreciate and agree with your post.

  20. One moonbat politician does not constitute “They.” Being an independent, I would challenge anyone who stated Maxine Watters represents the Dem “They.”

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