Obama’s cancellation “fix” and the rule of law

As much as President Barack Obama and administration officials don’t want to admit it, the Constitution established three branches of government, all of which have clear and defined roles and are independent of each other, but needed to keep the others in check.

Over the last several decades, the lines between the executive and legislative branches have become increasingly blurred. Presidents have consumed more power and Congress, especially when its controlled by the party occupying the White House, have set idly by while it happens.

But since 2011, when Republicans took control of Congress, President Obama has frequently used this claimed power to create law by executive fiat and, at times, ignore laws passed by the members of a duly elected, equal branch of government. It has created a constitutional crisis.

The latest example of this is President Obama’s “administrative fix” to deal with millions of health plan cancellations caused by Obamacare. Without any constitutional authority to do so, Centers for Medicare and Medicaid Services announced, at his direction, that the government would not enforce grandfathered plan regulations for one year, leaving it up to insurers to decide whether or not to participate.

The administration also did this with the employer mandate, declaring that it wouldn’t decision not to enforce the provision for one-year, until 2015, despite a statutorily set date of the beginning of 2014. When the House of Representative tried to codify the delay this summer, the White House threatened to veto it.

The legality of President Obama’s most recent fix has come into question by constitutional and legal experts.

“[T]he fix goes far beyond ‘non-enforcement’ because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law,” wrote Eugene Kontorovich at The Volokh Conspiracy, a blog where legal experts frequently write about policy and politics.

“The ‘fix’ amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail,” he added.

Jonathan Adler explained that President Obama’s fix noted that the fix means that insurers can continue to sell health plans to currently enrolled customers that are deemed illegal under Obamacare.

“Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The President’s decision does not change relevant state laws either,” wrote Adler. “So insurers will still need to obtain approval from state insurance commissioners,” adding that even if insurance commissioners approve the plans, they are still illegal by statute.

Actions like these, without any authority to change the law create not only a constitutional problem, but also set a bad precedent when it comes to enforcement of other laws. That’s point Megan McArdle, a policy analyst, mentioned last week at Bloomberg.

“Remember that in 2012, the Supreme Court ruled that the mandate was a tax. And as a lawyer of my acquaintance points out, taxes have to be enforced uniformly; the Internal Revenue Service can pick and choose who it audits, but it cannot pick and choose who has to obey the law,” McArdle explained. “If it declines to enforce the mandate against grandfathered consumers, it’s conceivably opening itself up to a bunch of legal challenges.”

There is no “political convenience clause” in the Constitution that grants a president power to arbitrarily change or create law when his poll numbers are crashing or when it looks like public opposition to a law he signed could cost members of his party seats in Congress.

Perhaps even more troubling is what groundwork this lays for the future. It’s important to remember that presidents don’t come into office looking to cede power assumed by their predecessor. They look at that power as a floor, not a ceiling.

President Obama has significantly added to an ongoing constitutional crisis through the many decrees and directives he’s issued in office, which only serves to further breakdown of the rule of law.

 
 


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