According to the Congressional Research Service, the Obama administration has missed more than half the legal deadlines for implementation contained in the law.
In recent months, President Obama and his subordinates have waived or delayed a number of Obamacare's notable features, such as the law's employer mandate, and its procedures for protecting taxpayers from fraud and identity theft. Earlier this month, in that context, I obtained a heretofore-unpublished memorandum from the Congressional Research Service. The CRS, Congress' non-partisan in-house think tank, compiled 82 deadlines that the Affordable Care Act mandates upon the first three years of its own implementation. Remarkably, it turns out that the White House has missed half of the deadlines legally required by the ACA. And some of those deadlines remain unmet to this day.
The new CRS memo, dated June 5, 2013, is an addendum to a series of previous reports in which the agency examined missed deadlines during the law's first two years. The CRS excluded from its analysis deadlines that don't reflect on the administration's competence; for example, as states expand Medicaid, the federal spending associated with those expansions occurs more or less automatically. Deadlines that the law imposes on non-federal government actors, like state governments and private companies, were also excluded.
As of May 31, 2013, when the CRS analysis was completed, the White House had yet to meet 9 of 12 deadlines from the first year after the Affordable Care Act was enacted. It failed to meet 22 of 53 deadlines in the second year; another 8 became moot after Congress did not appropriate funds to complete the assigned tasks. In year three, the administration missed 10 out of 17 deadlines. That's a total of 41 out of 82 deadlines missed.
If you exclude the 9 deadlines that became moot because Congress never appropriated the funds to meet them, the Obama administration missed 41 out of 73 deadlines, or 56 percent.
The next time someone tells you that the reason Obamacare implementation is so screwed up is because the GOP refused to fund it, this would be a handy report to throw in their face.
Not to be outdone, the Chicago Tribune published a scathing editorial about the administration "flouting" the law:
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.'"
What is perhaps most galling is that the administration is basing so many of these decisions to delay requirements on politics. Some of the delays are the result of the complexity of the technology needed to make the exchanges work. Congress may be faulted for not knowing that, but if there's no way to implement the requirement, you can hardly blame the administration for that.
The problem lies with the overwhelming majority of deadlines that the administration has missed. I've noticed this in other areas as well - budgets that are late despite statutory requirements that they be forwarded to congress by a certain date. Delays in publishing rules and regulations. The administration reminds me of me when I was in college; waiting until the last minute to get an assignment in and then being late, which used to piss off professors to no end.
They are flouting the law with no one to slap them down for it. Only the courts have the power to force the administration to obey the law, since we have a divided government and the Democrats don't have the integrity to uphold the law.
This nightmare will continue as long as there is no one who can put a stop to the law breaking.