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As a result, companies are moving to increase rates even further at a time when roughly half of Americans want the ACA repealed and Democrats are fearing significant losses in the next election.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
The creep of the Imperial President seems to have started with Regan (It did not slow down when Democrats were in office).
There’s a good primer on Wiki about signing statements:
http://en.wikipedia.org/wiki/Signing_statement
My favorite tidbit in this article: “…The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel A. Alito — then a staff attorney in the Justice Department’s Office of Legal Counsel — of a 1986 memorandum making the case for “interpretive signing statements” as a tool to “increase the power of the Executive to shape the law.” Alito proposed adding signing statements to a “reasonable number of bills” as a pilot project, but warned that “Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.”
At least with the signing statements Congress and the courts had a heads-up before the president began free-styling.
I never fail to be astonished by the number of people who say, in effect, that the way to solve expensive banking abuse is to make bank robbery legal. The way to solve partisan gridlock in Congress is to have the president violate the constitution. Insane.
David;
I agree. There, I said it. I agree.
With the stipulation that hospitals and the medical profession are equally complicit.
I still think you sound less intelligent, as I think anyone does when they say Democrat Party. It’s as telling as brightly colored stains around the mouth from quaffing Kool-Aid.
That’s one of the reasons that I thought it was funny that the GOP was opposing the ACA. They knew they don’t have the votes. Even the Sct upheld it. Too many gazillions of dollars at steak. Heck in some states they actually were writing legislation before Alec was thought of.
Now I just wonder how many congress critters are going to be investigated for insider trading.
BTW Shulte: This is a subsidy. No different than what the oil industry takes from taxpayers.
Schulte:
Nobody had to sell this to insurance companies, Paul. They developed it. Look it up. The ACA is nearly identical to a Heritage Institute policy proposal that came about during Nixon’s term in office. One of the points where the two diverge is the ACA’s requirement that insurance companies spend 80% or thereabouts of premiums on providing treatment.
When Repubs talk about replacing the ACA, they’re really talking about changing that provision; pretty much everything else stays the same. But they’ll blame that on Democrats, too.
Looks like you’ve got your work cut out for you.
Keebler:
You pretty much got it exactly right. When everyone was waiting for the S.Ct. to issue its ruling on the ACA, I was predicting that it would be upheld for the simple reason that the insurance companies had essentially designed the law almost fifty years prior. Then, once the law was passed, they spent a ton of money having every department analyze every word trying to figure out how to maximize their profits.
And then someone else made the point that insurance companies never suffered even though laws made them insure every driver on the road.
You know who else is making money? Ad agencies and media outlets that sell ad time and space.
Samantha, The class envy pushed by this President is antithetical to everything I believe. I grew up in a blue collar, ethnic family. Most of my friends were the same. We all had instilled in us to get an education, work smart and hard. Don’t envy someone higher up on the economic scale. Use them as inspiration.
Darren, if it can’t already, the supreme court should have the ability to review immediately. I mean, the president can veto, willie-nillie, and Congress can impeach. That the court hasn’t already done so, explains the rogue presidency.
John, your private property is up for redistribution. We are supposed to know better than to create a surplus for our selves now. That makes us greedy in the eyes of the parasites, even though we have worked hard, even sacrificed, for what we have earned.
Is Obamacare a “blessing of liberty” or the right to private property? Am I free to pay for some parasite’s medical insurance or is my private property being made public for redistribution?
Let’s ask the SCOTUS for yet another decision based in ideology.
Here’s the principle Obama and the SCOTUS agreed on: “From each according to his ability, to each according to his need.” Oh yeah! Right out of the Constitution.
A nation of laws that is lawless.
If Americans have “blessings of liberty” and the right to own private property, redistribution of wealth is unconstitutional in any and all forms.
I believe Professor Turley is correct in what he has written.
To me this unilateralism, and other actions, is politically minded to protect his party in the upcoming elections. What also is as unacceptable is how Members of Congress allow this to happen.
One issue I have wondered, and perhaps some constitutional lawyers might be able to answer, is this:
If the Supreme Court has the ability for judicial review of cases out of the US District Courts, before they have reached the Courts of Appeal, may the Supreme Court immediately perform this review on executive actions by the president?
Here is what our nation has to look forward to, for all industries, when it insanely puts all of its eggs into the hands of one person:
Crimeans get Russian price shock
http://www.kyivpost.com/content/business/crimeans-get-russian-price-shock-348955.html
bankster, healthcare costs may have risen 26 percent under obama, but insurance premiums have more than doubled. That is more than 100 percent increase in real health care costs — not 26 percent. The difference, of course, is going to the insurance industry. If you’re content with all that, you will also be content when the housing industry comes after you to pay for free housing for everyone, too. Or are you exempt in some way because taxpayers pay all of your benefits and cost of living increases? The average consumer today is distressed in unbelievable proportion, something that goes unnoticed because every other person among us is either elitist and can’t be bothered or is a psychopath.
“The first look at the Affordable Care Act’s impact on New Jersey reveals the percentage of uninsured people is on track to reach its lowest level in nearly a quarter of a century, according to a new report released Thursday by the Robert Wood Johnson Foundation.
The proportion of uninsured adults decreased 38 percent from September to early March, according to the foundation. That decline is likely to accelerate, knowing that many people waited until the last minute to beat the March 30 enrollment deadline.” (ibid, New Jersey Insurance).
Insurance companies are corporations.
Thus, they are people.
Love thy neighbor.
Uninsured rate hits 25-year low in New Jersey thanks to Obamacare
Get ready for your next hospital stay. 3 hots and a cot.
out of control!
Then after it was passed the bigger started gobbling up the smaller companies. Not for millions but billons in transactional exchanges.
David,
I’m going to call you on that and say you did not have a clue. It was so well hidden in the financial news that I put it together before the ACA was passed.
There is no republican in office that did not get elected without some insurance company lobbist money. I call what you said about it as being BS.