Democrats strong-armed Obamacare into law three years ago. Now they’re busy flouting it.
The mandate that employers provide insurance next year or pay a penalty, as the law requires? Delayed for at least a year.
The law’s dictate that people applying for federal subsidies to buy insurance provide proof that they’re eligible for the government aid? Scaled back.
Sharp limits on Americans’ out-of-pocket costs for health care? Suspended for a year.
Providing members of Congress and more than 10,000 staff members with federal health care subsidies that the law does not allow? Done, via a deal brokered by President Barack Obama.
And on and on.
The Affordable Care Act, aka Obamacare, is a hugely complex law that sets up online health insurance marketplaces, requires people to have coverage or pay penalties, and doles out subsidies and incentives to nearly everyone in health care. Doctors, hospitals and insurers have spent large sums to gear up for its requirements. Employers are mulling: Hire? Fire? Cut workers’ hours?
Millions of Americans, that is, stand to gain or lose from how this law is enforced — with the Obama administration bending that enforcement in ways that test, and arguably exceed, the boundaries of lawful conduct.
Every time the White House undercuts one provision of Obamacare, there is a massive ripple effect on other provisions. It’s generally a zero-sum game: When someone gains, someone else loses. Example: When employers are relieved of their mandate to provide insurance, taxpayers risk having to subsidize more of those companies’ employees.
The administration asserts that it can make these changes under the president’s broad executive authority. Yet critics make a compelling argument that the president is stretching the limits. Former federal appellate Judge Michael McConnell, director of the Constitutional Law Center at Stanford Law School, writes in The Wall Street Journal about a different sort of mandate: the mandate in Article II of the Constitution that the president “‘shall take Care that the Laws be faithfully executed.’ This is a duty, not a discretionary power. … As the Supreme Court wrote long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes ‘would be clothing the president with a power to control the legislation of Congress, and paralyze the administration of justice.'”
Like most issues of presidential authority, this isn’t cut and dried. Presidents do have broad discretion on how laws are enforced. But they’re on shaky ground when they decidewhether to enforce a law. It’s not hard to understand why: Imagine the outcry if President Mitt Romney refused to enforce, say, Obamacare.
Granted, any president may decline to enforce statutes he believes are unconstitutional. But Obama is making no such claim here. Basically, he is admitting that parts of law are impossible to enforce on the deadlines imposed by Congress — deadlines he signed into law. He’s also admitting he doesn’t want to have Congress make these changes, for fear that if lawmakers get their mitts on this unpopular program, they would at least debate far more extensive changes than he’d like.
Congressional Democrats, and some Republicans, may agree with the numerous delays, changes and special favors. But the president invites chaos when he picks which parts of Obamacare to enforce, and which, in retrospect, he has decided are unworkable or unwise.
In a recent news conference, Obama acknowledged that congressional modification of the law is preferable to these White House fiats: “In a normal political environment, it would have been easier for me to simply call up (House Speaker John Boehner) and say, ‘You know what? This is a tweak that doesn’t go to the essence of the law. … Let’s make a technical change of the law.’ That would be the normal thing that I would prefer to do, but we’re not in a normal atmosphere around here when it comes to, quote-unquote, ‘Obamacare.”’
Tweaks? Obama isn’t making tweaks. He’s trying to circumvent major flaws that began flaring when the law was enacted. Hence the many carve-outs, delays and special deals that have been piling up since he added his signature to Obamacare on March 23, 2010.
The president crusaded for this law and has embraced its nickname. But he did not write the law. Congress did. Major changes are necessary — he has stipulated by his actions that this law as constituted cannot work — and Congress should legislate them for his review.
Bottom line: Let’s delay and rewrite this ill-conceived law. Congress need not start from scratch. Lawmakers can build on what all of us have learned from three years of painful trial and error. Three years of attempting, but failing, to make this clumsy monstrosity work for the American people.
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This op-ed article was published by the Editorial Board of The Chicago Tribune.