The botched roll-out of the Affordable Care Act offers a stunning example of President Obama’s unrelenting attempts to expand executive power—his power—beyond what the Constitution allows. On November 14, the president announced that he was dispensing with a key provision of the law, Section 2702, for a year. That section states that beginning on January 1, 2014, every policy sold in individual and small group markets must include 10 so-called essential benefits.
Leave it to the “Washington knows best crowd” to dictate what Americans’ health insurance must cover. The assumption is that we are too stupid to choose insurance for ourselves. It’s like passing a law that the only cars we can buy are four-door sedans. No hatchbacks and no convertibles, because we won’t know when to put the top up.
Over the last few months, Section 2702 has caused some 5 million Americans to receive notices from their insurers that their health plans are being canceled. Millions more such letters will be in the mail shortly—up to 120 million in all, according to some estimates, before the fall of 2014. Middle-aged couples are having plans canceled because they don’t include maternity coverage, and straight arrows are having plans canceled because they don’t include substance abuse treatment. Nightly news programs picture cancer patients whose coverage has been canceled midway through their chemotherapy.
Yet the president promised again and again that “if you like your health care plan, you can keep your healthcare plan. Period.” That promise was critical to getting the law enacted. Eighty-five percent of Americans had health insurance, and nearly all were happy with it. So now the president and his advisors are scrambling for quick fixes, trying to stay ahead of the demands for delaying or repealing the entire law. Even longtime booster of the Affordable Care Act, former president Bill Clinton, is telling the Obama administration to do something to stop the
Thus far President Obama has been the master of the fast fix, usually by executive fiat. At the official press rollout of Healthcare.gov, Obama brushed off his critics. “The Affordable Care Act,” he said, “is a law that passed the House. It passed the Senate. The Supreme Court ruled it constitutional….It was the central issue in last year’s election. It is settled…”
Really? That claim could be made about the 2,572-page Affordable Care Act, which is sitting here on my desk. But it cannot be made of Obamacare—the ad hoc health program the administration is struggling to execute week by week.
Obamacare is not the Affordable Care Act. It is a mangled distortion of the bill passed by Congress. Far from being “settled,” it may not even be law at all. The president has already illegally—indeed unconstitutionally—dispensed with large portions of the law. Gone is the employer mandate (probably forever), gone are caps on out-of-pocket expenses, gone is income verification (replaced with a limp promise in the recent debt ceiling deal), and gone are over half the deadlines spelled out by Congress in the statute.
President Obama—who knows full well that politics is a game of addition, not subtraction—has added waivers for 780 companies and 451 labor unions and weaseled a special deal that makes members of Congress eligible for a taxpayer-funded subsidy for their premiums, something no one else in America earning $174,000 a year could get. (This sop to legislators and their staff will set taxpayers back $55 million a year.) None of these handouts can be found in the text of the Affordable Care Act.
These illegal changes to the Affordable Care Act are not victimless crimes: Suspending the employer mandate shifts costs from employers to taxpayers, while suspending the cap on out-of-pocket expenses helps insurers and keeps premiums from spiking even higher, but punishes the seriously ill whom the law was initially supposed to benefit. Even pro-Obamacare advocacy groups such as the American Cancer Society have expressed outrage at the suspension of the caps.
In the coming months we will see many more demands from all corners asking for changes or delays to parts of the Affordable Care Act. Making changes to a law whose consequences have already proved disastrous for millions of Americans is not necessarily a bad thing. But who is making the changes? This matters. The president cannot be allowed to pick and choose what parts of the law are enforced. The prescient James Madison, chief architect of the Constitution, anticipated the danger in Federalist 62. Madison warned that it was pointless for Americans to elect a Congress if that Congress, in turn, enacted laws “so voluminous that they cannot be read” or if these laws then “undergo such incessant changes that no man who knows that the law is today can guess what it will be tomorrow.” That is Obamacare to a tee.
Fast fixes are not what the Constitution’s framers devised. But don’t hold your breath waiting for Congress to rush to uphold the rule of law. Relief on this front may come faster from the courts.
The month of October was bookended by lawsuits brought in response not to the Affordable Care Act as it reads on paper, but rather to Obamacare in its employer mandate-less incarnation. On October 30 the American Association of Physicians and Surgeons filed a constitutional challenge to Obama’s unilateral delay of this mandate (AAPS v. Werfel), arguing that the administration’s actions violate the separation of powers because the executive branch cannot rewrite the law. Earlier, on the first of October, Judicial Watch filed a lawsuit in federal court on behalf of a Florida orthodontist who had expended thousands of dollars in legal fees preparing for the employer mandate only to see his money wasted and his business plans bungled when the administration suddenly dispensed with it. The lawsuit, filed in the U.S. District Court for the Southern District of Florida, argues that the Treasury Department, responsible for enforcing the mandate, violated the Administrative Procedures Act, which forbids federal agencies from replacing statutory authority with their own discretion. Thomas Fitton, president of Judicial Watch, explained that “under the Constitution, the law can only be changed by legislation passed by Congress and signed by the president.”
When Senator Mike Lee made a similar argument this summer, he was shouted down in the rather too easily swayed court of public opinion. But things look more promising in federal court. On October 22, U.S. District Judge Paul Friedman denied the Obama administration’s request to dismiss a lawsuit challenging what I like to call its “Rewrite the law whenever it’s convenient” strategy. The Affordable Care Act says people who enroll in plans offered on exchanges “established by the states” are eligible for premium subsidies depending on their household income. Only 14 states established exchanges. The other 36 states declined, letting the federal government do it. To weasel around that unexpected snafu, the IRS ignored the letter of the law and pushed ahead to provide subsidies in all 50 states.
Judge Friedman promises to give an expedited ruling before February 2014 to prevent subsidies from being passed out if they are deemed illegal. The Obama administration also lost its bid to dismiss a lawsuit brought by Oklahoma Attorney General Scott Pruitt on the same issue. Pruitt told the court the federal government can’t rewrite the law. The Obama administration told the judge there was no merit to the case, but U.S. District Judge Ronald White disagreed and let Pruitt’s case proceed.
The president brushes off questions about his selective enforcement of the law as mere partisan attacks, but federal judges obviously don’t see it that way. And it’s not just about health care. Consider a ruling on another matter entirely: the president’s determination to implement his own energy policy in defiance of what Congress has enacted—or rather failed to enact. The Obama administration’s bruising defeat in the D.C. Circuit Court of Appeals on August 13 suggests that the president may lose these upcoming health care lawsuits as well. Back in August the court ruled that the Obama administration, including Energy Secretary Steven Chu, could not ignore a 2002 statute requiring final action on certification of Yucca Mountain as a nuclear waste site.
Judge Brett Kavanaugh ruled:
[O]ur constitutional system of separation of powers would be significantly altered, if we were to allow executive and independent agencies to disregard federal law…Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no objection to the statute.
“That is the basis for the rule of law,” the judge added. Whether the president knows it or not, this ruling has already smashed to pieces his delay-waive-rewrite strategy to make the unworkable Affordable Care Act workable.
When Tom Fitton, president of Judicial Watch, announced his group’s lawsuit, he paraphrased Ulysses S. Grant: “The best way to ensure the repeal of a bad law is to enforce it vigorously.” In other words, let the public feel the brunt of Obamacare. And if these lawsuits challenging the subsidies in 36 states succeed, the public will. People will still be legally required to have insurance, but they will have to pay unsubsidized sticker-shock premiums. According to the Manhattan Institute, such premiums are on average twice as high for men—with whopping deductibles of $5,000 for the bronze plan and $3,000 for silver—as they would be if the Affordable Care Act had not been passed.
Fortunately, a defeat for the administration on this front will also mean employers are shielded from penalties for failing to insure workers. Those penalties are triggered when an employee receives a subsidy on an exchange—one of the mind-numbing complexities of the Affordable Care Act.
The Supreme Court ruled it constitutional,” the president is so fond of saying. Yet dozens of lawsuits challenging the administration’s foot-loose implementation of the Affordable Care Act are still making their way through the courts. All of this is to the good. But courts alone cannot ensure the survival of our republic. We the people must elect vigilant lawmakers committed to defending the Constitution, and hold them accountable when they put party loyalty ahead of constitutional fidelity. Nothing better illustrates that than the corrupt way the Affordable Care Act was passed, in violation of the origination clause, with barely a murmur of protest.
In the coming months, polls will reflect Americans’ mushrooming outrage over high premiums, canceled health plans, and job cutbacks. Phones in Capitol Hill offices will ring off the hook with complaining constituents demanding immediate solutions. When this happens, conservatives must avoid going to the president supplicant-like, pretty-please, mister-begging him to delay deadlines and waive penalties that are clearly spelled out in the Affordable Care Act. (This is the kind of groveling we saw from some conservative members of Congress on October 30 during Kathleen Sebelius’s testimony before the House Energy Subcommittee.) If the president tries to slip in more quick fixes, don’t accede to them. It’s up to Congress, not the president, to change the law. The president’s job is to faithfully execute it.
There is more at stake here than health care. This street magician of a president is threatening the rule of law, the bedrock of our freedom, with his sleight of hand. Don’t let him pull another rabbit out of that damn hat.