Rom­ney foes ex­cuse Obama’s health act waivers

The Washington Times Weekly - - Politics - BY TOM HOW­ELL JR.

Lit­tle more than a year ago, the health care con­ver­sa­tion was whether a po­ten­tial Pres­i­dent Mitt Rom­ney could use ex­ec­u­tive pow­ers to halt some or all of Oba­macare. Now, it’s Pres­i­dent Obama him­self who has made ex­ten­sive use of those pow­ers, leav­ing the GOP to ac­cuse him and his de­fend­ers of hypocrisy.

In the year since his re-elec­tion, Mr. Obama has used his ad­min­is­tra­tive chisel to chip away at dead­lines and penal­ties tied to the law’s in­di­vid­ual man­date, ar­gu­ing that he has the power to use his “dis­cre­tion” to en­force parts and de­lay oth­ers.

Many of those who ques­tioned whether Mr. Rom­ney would have the au­thor­ity are now de­fend­ing Mr. Obama, say­ing he is within his rights be­cause he is us­ing his pow­ers to de­fend, not pick apart, the Af­ford­able Care Act.

“It’s hyp­o­crit­i­cal of the left,” said Lan­hee J. Chen, a pol­icy ad­viser for the Rom­ney cam­paign, not­ing that Democrats “would have been up in arms if Rom­ney had done the same thing as Obama.”

Mr. Rom­ney, the 2012 Repub­li­can pres­i­den­tial nom­i­nee, guided state-level health care re­form as Mas­sachusetts gov­er­nor but said Mr. Obama’s na­tion­wide model would not work as in­tended. He promised vot­ers that if elected, he would is­sue a waiver on his first day in of­fice grant­ing states the power to opt out of the health care act. He said he then would use the bud­get process to choke off the law.

Pro-Obama groups ac­cused Mr. Rom­ney of mis­lead­ing the Amer­i­can pub­lic by claim­ing ex­ec­u­tive pow­ers that did not ex­ist or could not re­peal the health care law.

Since then, Mr. Obama has been the one carv­ing out pro­vi­sions. For in­stance, he said he would use the equiv­a­lent of pros­e­cu­to­rial dis­cre­tion for states to al­low sub­stan­dard insurance poli­cies that were sup­posed to be out­lawed by Oba­macare.

Mr. Rom­ney’s crit­ics have be­come Mr. Obama’s de­fend­ers, say­ing the in­tent of the two men mat­ters.

“I think there’s just a huge dif­fer­ence be­tween us­ing ex­ec­u­tive dis­cre­tion to im­ple­ment a law prop­erly and us­ing ex­ec­u­tive dis­cre­tion to re­peal a law,” said Ti­mothy Jost, a health pol­icy an­a­lyst at Wash­ing­ton and Lee Univer­sity School of Law who crit­i­cized the Rom­ney plan.

Igor Vol­sky, man­ag­ing ed­i­tor of Think Progress, wrote a pair of blog posts crit­i­ciz­ing Mr. Rom­ney dur­ing his can­di­dacy for claims that he would let states opt out of Oba­macare.

He said in an in­ter­view Fri­day that com­par­ing Mr. Obama’s tweaks to Mr. Rom­ney’s as­ser­tion of ex­ec­u­tive power “does not stand” be­cause Mr. Rom­ney would have flouted the will of Congress when it en­acted a law in­tend­ing to broaden ac­cess to health care.

“[Mr. Obama is] us­ing au­thor­ity that ad­min­is­tra­tions have used in years gone by for all kinds of things,” Mr. Vol­sky said.

He com­pared Mr. Obama’s dead­line de­lays to those of the Bush ad­min­is­tra­tion, which re­peat­edly halted the dead­line for fed­eral se­cu­rity stan­dards for state driver’s li­censes un­der the Real ID Act.

House Repub­li­cans have ac­cused Mr. Obama of abus­ing his power by find­ing uni­lat­eral so­lu­tions to the law’s prob­lems, of­ten on the cusp of ma­jor hol­i­days.

Mr. Chen at­trib­uted Mr. Obama’s moves to “the fact he re­al­ized the law isn’t work­ing” as the ad­min­is­tra­tion in­tended.

In July, the White House de­layed for one year a man­date re­quir­ing large em­ploy­ers to pro­vide health care cov­er­age. Then, it said no one would be pe­nal­ized for lack­ing health insurance if they at­tempted to sign up for cov­er­age by March 31, a six-week re­prieve from the orig­i­nal dead­line of Feb. 15.

Most re­cently, Mr. Obama pushed back the dead­line to sign up for cov­er­age and have it by New Year’s Day and asked in­sur­ers to go easy on con­sumers for their first pre­mium pay­ments.

Repub­li­cans who in­sist on re­peal­ing Oba­macare say the moves are proof that the law is un­work­able.

A Rom­ney ad­min­is­tra­tion “would have had pretty broad au­thor­ity” to do the things it pro­posed, Mr. Chen said, even if the bal­ance of Congress pre­vented a straight-up re­peal. He said the health care law is full of gray ar­eas, with nu­mer­ous pro­vi­sions that say the health and hu­man ser­vices sec­re­tary “shall pre­scribe” var­i­ous rules.

Congress did af­ford wide lat­i­tude to the ex­ec­u­tive branch in 2010 when it en­acted the health care law. For in­stance, it al­lowed the ad­min­is­tra­tion to ap­prove state-level al­ter­na­tives to Oba­macare as of 2017.

The waivers, how­ever, “are in­tended to en­hance, not un­der­mine, the ACA’s goals of in­creased ac­cess and lower cost,” ac­cord­ing to a 2012 anal­y­sis by two Ge­orge­town Law School pro­fes­sors on ex­ec­u­tive au­thor­ity to block the law’s im­ple­men­ta­tion.

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