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The Right Prescription
Rewriting Its Own Bad Obamacare Law
Who needs Congress when the Obama administration is ready to legislate?
President Barack Obama won big when Congress passed his health care bill. But the administration made a serious mistake and now is trying to rewrite the law. Without going to Congress, as required by the Constitution.
The central feature of the misnamed Patient Protection and Affordable Care Act is the requirement that Americans buy health insurance, which Supreme Court Chief Justice John Roberts decided really wasn’t a mandate in a bizarre opinion upholding the law. As important as that requirement are the exchanges through which people are supposed to purchase insurance.
PPACA includes tax credits and subsidies so people can afford insurance made more expensive by a gaggle of new federal requirements. Congress didn’t just decide that people have to buy insurance. People must purchase insurance as determined by Washington. Or, more accurately, the Health and Human Services bureaucracy, which is empowered to decide every Americans’ coverage.
However, Congress and the president tied federal tax credits and subsidies only to policies purchased through state-established exchanges. Apparently the administration did not imagine that anyone would defy Uncle Sam. However, so far only 14 states and the District of Columbia have created exchanges. At least half of the states are likely to refuse to construct insurance exchanges. Which means Washington will have to do it for them. Indeed, HHS Secretary Kathleen Sebelius admitted that the federal government may have to run as many as 30 exchanges. But PPACA did not provide tax credits or subsidies for federally established exchanges.
Which creates another problem for the administration. In a recent paper for Case Western Reserve University School of Law, Case Western law professor Jonathan Adler and Cato Institute scholar Michael Cannon point out: “The tax credits and subsidies for the purchase of qualifying health insurance plans in state-run exchanges serve as more than just an inducement to states. For example, these entitlements also operate as the trigger for enforcement of the Act’s ‘employer mandate.’ As a consequence, that mandate is effectively unenforceable in states that decline to create an exchange. Because such a large number of states may decline to create exchanges of their own, it may be difficult to implement the law as some had intended.”
Oops!
In a system based on the rule of law, the Obama administration would go back to Congress and ask it to “fix” the law. But the administration knows that the GOP-dominated House would laugh in response. Even the Senate, with increased Republican membership, would refuse. So the president decided to dispense with the legislative branch and make law on his own.
The Internal Revenue Service issued a rule in May extending the provisions relating to state exchanges to federal ones. It’s a nice trick but contrary to PPACA. Note Adler and Cannon: “The plain text of the Act only authorizes premium-assistance tax credits and cost sharing subsidies for those who purchase plans on state-run exchanges.”
In fact, the administration does not claim otherwise. The Department of Health and Human Services stated that the IRS rule was “supported by the statute.” The Treasury Department explained that the regulation was “consistent with the intent of the law and our ability to interpret and implement it.” However, nothing in the U.S. Constitution authorizes bureaucrats to act as lawmakers as they “interpret and implement” legislation passed by Congress.
The IRS has its defenders, such as Timothy Jost of Washington & Lee University. In fact, he seems to resent Adler and Cannon defending the rule of law. He asks why “extending the benefits of our health care system to millions of uninsured Americans troubles” opponents of Obamacare.
In fact, politicizing the health care system, turning control of people’s insurance coverage over to Washington, is bad policy. When Uncle Sam rations care those with the least political influence are likely to do badly. Health care reform is necessary, but nationalizing the system was not the right approach.
Anyway, good intentions cannot justify ignoring the rule of law. The Constitution means little if the executive can write legislation at its pleasure. Congress, not the president, makes law. If legislators didn’t vote tax credits and subsidies for federal exchanges, the president can’t add them.
Jost admits, as he must, that the law does not authorize credits and subsidies for federal exchanges, but says no matter. He contends that the omission was just a “drafting error.”
However, the Supreme Court has ruled that it will fix legislation only where there is “overwhelming evidence from the structure, language, and subject matter of the law” that Congress meant otherwise. That is not the case here.
Congress has a responsibility to do its job right and to fix its own mistakes. The courts do not have carte blanche to step in. Adjusting a typo is one thing. Adding a substantive provision that reduces revenue and increases expenditures is another. Indeed, if no state created an exchange, the IRS regulation would cost nearly $700 billion over the coming decade.
About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).
TLP| 8.22.12 @ 7:14AM
I wouldn't worry about it.
If Black Hitler wins? The Constitution will no longer exist. It will be cast out of the Library of Congress, never to be spoken of, again. You'll be able to read it, as it will most likely turn up printed on Wrapping Paper, and Book Covers, but "What it all means" will be forever lost in the ethers, since it's already being Ignored and Sidestepped by the Politicians, and Trashed by the Left, and the Leftists who oversee Public Education. My kid is going in to the 7th Grade and still has not had Day 1, of the Founding of this Country.
And, if Black Adder loses?
That will end this brief descent in to madness, until the next time we Ignore Human History, and follow a Young attractive leader with powerful oratorical skills, and a slick campaign, into the abyss.
SIEG HEIL!
Capiche?
Alan| 8.22.12 @ 7:26AM
I would only disagree with one item, he has no powerful oratorical skills. Take away his teleprompter and you have to pry his foot out of his mouth with a crowbar. An evil nefarious person with real oratorical skills would be frightening to behold and its effects on the stupid and ignorant twits that grace this country would be pied piper lemming level material.
TLP| 8.22.12 @ 9:06AM
You are correct.
Let's change "Powerful Oratoical Skills" into "Really Good Reader".
Much better.
TLP| 8.22.12 @ 9:16AM
And, not for nothing, but when you look at Frau Sebelius in that photo, above? Can't imagine that there is a Baby that's crying, somewhere in the back of the room, and that she'd like nothing better than to march over their with a pair of Scissors, and Slice that Kid's neck open, at the base of its Skull, and Suck out its Brain, and Throw in in to a Storage Room, if only the Media wasn't there?
Seriously.
Can't you see it?
Cause that's what I see.
R Martin| 8.22.12 @ 10:54AM
Yes, I've always seen that. I think Sebelius makes nurse Ratched look cuddly.
Stephie| 8.22.12 @ 11:23AM
She is the Angel of Death and the democrats are the party of death, all in the name of "a woman's right to choose" of course as we all know, a marxist line to make us feel like we're in charge of our bodies.
chuck| 8.22.12 @ 7:43AM
TLP,
It is up to YOU, not his teachers, to instill the values inherent in our Republic. Teach him what this country stands for, where we came from, and what must be done to preserve it.
You know all these things. Your responsibility is to pass the knowledge down to your children and grandchildren.
TLP| 8.22.12 @ 9:02AM
I do that chuck. That's not the point.
The Point is that I'm a Huge Minority.
I guarantee you that 99 out of 100 Parents, are NOT teaching their children what my Teachers taught Me, in Elementary School, and what these MFers should be Teaching EVERYBODY'S Kids, today.
I hope that cleared things up for you.
Pecos Pete| 8.22.12 @ 9:39AM
Tim: A bit of an overstatement with that "99 out of 100 Parents" thing. But, I'd accept 60 out of 100. Still, your point is made. Parents, not schools, instill discipline, reverence and morality.
Stephie| 8.22.12 @ 11:24AM
Not any more. Too busy working to get that big house and suburban.
Cat Shot| 8.22.12 @ 10:34AM
How can parents teach what they themselves were not taught?
TLP| 8.22.12 @ 6:45PM
Nice.
Jacob McCandles| 8.22.12 @ 7:58AM
The Supremes undid most of the law's "intent" by the Medicaid ruling. Medicaid was the instrument for insuring most of the uninsured.
We all know the true intent of the law, however, and insuring the poor was not it.
Bill Hussein O'Stalin| 8.22.12 @ 7:44AM
In the meantime I suspect we will observe an interesting phenomenon.
All the freeloaders who won't work and refuse to pay for their necessities will gravitate to the states that have set up their health care exchanges.
Once those states are overwhelmed with the freeloaders who can move from state to state quite easily, they may change their minds.
TLP| 8.22.12 @ 6:46PM
Absolute Genius.
chuck| 8.22.12 @ 7:45AM
Laws, we don't need no stinkin' laws!
And the libs say that Bush trashed the Constitution!
The Avenger| 8.22.12 @ 8:20AM
I certainly hope the lemmings who elected this "dear leader" are happy with their changes. I'm not!
Von Mises Jr| 8.22.12 @ 10:01AM
First of all, Obama is not a Constitutional Law Professor. He was a community organizer and lecturer on Alinsky's "Rules for Radicals."
While the article is excellent in explaining the difficulty of setting up the system, it fails to explain that ObamaCare is also not funded. The State Mandate argued on the Third Day was not constitutional. The states DO NOT have to extend Medicaid to 138% of the poverty-line.
In New Jersey, that would increase the Medicaid portion of the State Budget from $10B to $15B. With a $33B budget, property taxes MUST be raised by 15% across the board to fund the Medicaid expansion. But since many seniors have caps on property taxes, average homeowners paying $10-12K would have to pay 20-25% higher taxes. So property taxes MUST NECESSARILY SKYROCKET $2K TO $3K or nobody additional gets a checkup.
So much for finding out what is in the Bill by passing it. Is it Constitutional? "Are you Serious?"
TLP| 8.22.12 @ 6:48PM
Exactly right.
He was never a Professor of ANYTHING.
He was a Guest Speaker, when he wasn't hitting up the GUYS at the Harvard Review for Sex.
Good Post.
Von Mises Jr| 8.22.12 @ 7:32PM
Did Kevin Jennings go to Harvaaaaad?
JD| 8.22.12 @ 11:09AM
When this error in ObamaCare blows up in Obama's face, the MSM will ensure that the public believes fault lies with the evil Republicans who resist efforts to fix the law over trifles like the Constitution. "They're letting people die!"
CJW| 8.22.12 @ 11:53AM
We should thank Nancy Pelosi who at least was honest enough, or stupid enough, to say they had to pass it so they could read it. If they had read it they would have fixed it.
Von Mises Jr| 8.22.12 @ 3:25PM
They read all they needed to know, or thought they needed to know in five words: "As the Secretary Shall Determine."
That is how totalitarianism works. Only their legislation was so mucked up, it is dysfunctional.
TLP| 8.22.12 @ 6:50PM
You are incorrect.
The Democrats didn't need to Read It.
THEY WROTE IT.
UpChuck.Liberals| 8.22.12 @ 11:14PM
BUT that doesn't mean they understood it. We are talking about Nancy Pelosi here.
JP| 8.22.12 @ 11:28AM
HHS will get away with what ever Congress allows. Reid will do nothing, and Boehnner doesn't have to political skill to raise the alarm with the voters.
In a normal world, both Houses of Congress would order the HHS Dir to cease and desit; if she refuses, Congress then could hold her in contempt and remove her from office, as well as hold up all business until she is in compliance.
Never going to happen.
Houdini| 8.22.12 @ 11:44AM
With this administration there is no law.....just their rules. It's sad that the majority of the public doesn't realize how very important this November's election is. I used to laugh at people that talked of a revolution coming because the government was being taken over by sinister forces bent on the destruction of our freedoms and way of life....I'm not laughing any more.
PsychoDad| 8.22.12 @ 1:54PM
All those who advocate for "ObamaCare" -- please list off 2 or 3 existing government programs which you think have been unqualified successes.
JP| 8.22.12 @ 2:34PM
The Mohair sheep farm subsidies have been providing quality wool for the Union Army since 1863.
The federal hydrogen subsidy has been providing quality hydrogen for US Army Zepplins since 1917.
TLP| 8.22.12 @ 6:51PM
You're my New Best Friend.
Seriously.
Sonderegger | 8.23.12 @ 2:50AM
Congress has a responsibility to do its job right and to fix its own mistakes. The courts do not have carte blanche to step in. Adjusting a typo is one thing. Adding a substantive provision that reduces revenue and increases expenditures is another. Indeed, if no state created an exchange, the IRS regulation would cost nearly $700 billion over the coming decade.
Sonderegger | 8.23.12 @ 2:53AM
Congress has a responsibility to do its job right and to fix its own mistakes. The courts http://lyndatownsend616.blog.com do not have carte blanche to step in. Adjusting a typo is one thing. Adding a substantive provision that reduces revenue and increases expenditures is another. Indeed, if no state created an exchange, the IRS regulation would cost nearly $700 billion over the coming decade.
Anyone But Obama| 8.23.12 @ 7:54PM
How about a budget? Doesn't anyone care that there has been NO BUDGET since Obama took office?