Ex­ec­u­tive au­thor­ity ques­tions raised

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

Pres­i­dent Obama turned to pros­e­cu­to­rial dis­cre­tion yet again Thurs­day as he tried an end run around Congress, claim­ing uni­lat­eral au­thor­ity to let com­pa­nies con­tinue to of­fer health care plans un­der Oba­macare even if those plans vi­o­late his name­sake law.

The move drew howls of dis­ap­proval from Repub­li­cans and ig­nited a le­gal de­bate over whether Mr. Obama has the ex­ec­u­tive au­thor­ity he is claim­ing.

“Look, this is go­ing to be lit­i­gated,” said Rep. Michael C. Burgess, Texas Repub­li­can.

The ad­min­is­tra­tion said Mr. Obama was tap­ping his “en­force­ment dis­cre­tion” in much the same way he did last year, when he said he had the power to uni­lat­er­ally halt de­por­ta­tions of young il­le­gal im­mi­grants and in­stead granted them le­gal sta­tus and work per­mits.

“HHS will be us­ing its en­force­ment dis­cre­tion to al­low for this tran­si­tion,” said an ad­min­is­tra­tion of­fi­cial brief­ing re­porters ahead of Mr. Obama’s an­nounce­ment. “En­force­ment dis­cre­tion can be used gen­er­ally in tran­si­tions, as well as a bridge to­wards leg­is­la­tion. This is some­thing that has been used, for ex­am­ple, with the de­ferred ac­tion for childhood ar­rivals pol­icy, pend­ing im­mi­gra­tion re­form.”

That im­mi­gra­tion pol­icy, known by its acro­nym DACA, has proved con­tro­ver­sial as well. Un­der it, Mr. Obama has de­ter­mined that young il­le­gal im­mi­grants shouldn’t be de­ported, even though the law calls for that.

The pres­i­dent’s claims of ex­ec­u­tive au­thor­ity have irked con­ser­va­tives ever since Mr. Obama took of­fice in 2009, but Repub­li­cans said it has been par­tic­u­larly egre­gious when it comes to the health care law.

Mr. Obama al­ready has uni­lat­er­ally sus­pended the em­ployer man­date re­quir­ing large com­pa­nies to prove they are pro­vid­ing insurance cov­er­age for their em­ploy­ees. His ad­min­is­tra­tion also ruled that mem­bers of Congress who are be­ing pushed into the health care ex­changes could con­tinue to have tax­pay­ers pay for most of their premi­ums, even though most peo­ple in the ex­changes won’t have that same ben­e­fit.

In this lat­est in­stance, Mr. Obama was mov­ing to cir­cum­vent part of the law that bans health care plans that don’t meet cer­tain stan­dards.

That has led to mil­lions of con­sumers in the in­di­vid­ual mar­ket re­ceiv­ing can­cel­la­tion notices in re­cent months — and it has caused a ma­jor headache for Mr. Obama, who had vowed that those who liked their would be able to keep them.

House Repub­li­cans have pro­posed a bill, which is set for a floor vote Fri­day, that would over­turn Oba­macare’s re­quire­ments and let insurance com­pa­nies con­tinue to of­fer ex­ist­ing plans. Amer­i­cans who pur­chase one of those plans would be con­sid­ered to have met Oba­macare’s in­di­vid­ual man­date.

That bill had earned sup­port of a grow­ing num­ber of Democrats, and Mr. Obama’s move Thurs­day was an ef­fort to try to head off an em­bar­rass­ing no-con­fi­dence vote from his own party on the Repub­li­cans’ pro­posal.

“We put a grand­fa­ther clause into the law, but it was in­suf­fi­cient,” the pres­i­dent said at a news con­fer­ence Thurs­day, ex­plain­ing his move.

Un­der the loop­hole, Mr. Obama will leave it up to state health insurance com­mis­sion­ers to de­cide which sub­stan­dard plans still can be of­fered by insurance com­pa­nies, and he has pledged that his ad­min­is­tra­tion won’t pe­nal­ize them for of­fer­ing those plans even though they vi­o­late the Af­ford­able Care Act. The ex­ten­sion will last one year. Le­gal schol­ars have ques­tioned whether Mr. Obama has that sort of broad au­thor­ity on de­por­ta­tions, and Thurs­day’s move reignited that de­bate.

“It is true that the chief ex­ec­u­tive has some room to de­cide how strongly to en­force a law, and the tim­ing of en­force­ment. But here, Obama is ap­par­ently sus­pend­ing the en­force­ment of a law for a year — sim­ply to head off ac­tual leg­is­la­tion not to his lik­ing,” Eugene Kon­torovich, a pro­fes­sor at North­west­ern Univer­sity School of Law, said in a blog post at Volokh Con­spir­acy.

“The ‘fix’ amounts to new leg­is­la­tion — but en­acted with­out Congress,” Mr. Kon­torovich said. “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.”

Mr. Obama’s Demo­cratic al­lies on Capi­tol Hill, how­ever, said they be­lieve he acted within his power and has done enough to solve the prob­lem.

“There is no need for a leg­isla­tive fix for this is­sue,” said Se­nate Ma­jor­ity Whip Richard J. Durbin, Illi­nois Demo­crat.

Repub­li­cans, though, counter that even if it’s le­gal, Mr. Obama’s fix is tem­po­rary and he could change it at any time — mean­ing insurance com­pa­nies lack the kind of cer­tainty they need to do busi­ness.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.