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. Obama has repeated suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. Ironically, I just ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.
The new regulations have been called a “bailout” of insurance companies providing coverage under the healthcare law. The changes would allow companies to get the money if they control increases in their rates — for a couple of years. That just happens to put increases on the other side of the elections.
The Administration insists that it is hopeful that no bailout is needed but “we want to be clear that in the highly unlikely event of a shortfall, HHS will use appropriations as available to fill it.” That is all fine and good except for the fact that it puts billions to a use not approved by Congress. Even with over 8 million people registered, the ACA is not attracting the younger citizens who are needed to bear the brunt of the new costs by paying in significantly more than they will be taking out of the system. As a result, companies are moving to increase rates even further at a time when roughly half of Americans want the ACA repealed and Democrats are fearing significant losses in the next election. Moreover, as rates increases, more consumers are likely to bolt from the already unpopular program — risking a cascading failure.
The regulation states that “[i]n the unlikely event of a shortfall for the 2015 program year, HHS recognizes that the Affordable Care Act requires the secretary to make full payments to issuers. In that event, HHS will use other sources of funding for the risk corridor payments, subject to the availability of appropriations.” That suggests another shift of hundreds of millions or even billions to the new purpose.
Of course, insurance companies and lobbyists applauded the move but it is not the purpose but the means that remains problematic. I view this as another end-run around Congress in violation of the Separation of Powers. As I said many months ago, we are seeing the emergence of an uber-presidency that is fundamentally changing our system of government. Liberals and Democrats will rue the day that they supported such a destabilizing and dangerous aggregation of power in the Executive Branch. With polls showing Democrats more unpopular than their opponents, we could be looking at a Republican presidency. That individual may use the same unilateral powers to suspend environmental or discrimination laws. The Administration, and its allies, are once again discarding key principles for short-term gains. What is missing is an element of adult supervision to remind everyone that this is not our last president and these powers will remain long after Obama has joined his predecessors on the speaking circuit.
It is not enough to argue that Congress will not act the way you want it to act. We are a divided nation and Congress is divided. That is no license for unilateralism in a tripartite system of government. There is no room for “going it alone” in this system. What President Obama is suggesting is precisely the type of imperial presidency model once advocated by the likes of Richard Nixon. The fact that some may agree with this policy should not blind us to the fact that this type of unilateralism is creating a dominant and destabilizing branch in our system.
Source: LA Times