Delay of mandate is the 14th change to Obamacare without consulting Congress

John Fund makes this point, among others, in his post at The Corner:

Yesterday the Obama administration suddenly moved to allow hundreds of thousands of people who've lost their insurance due to Obamacare to sign up for bare-bone "catastrophic" plans. It's at least the 14th unilateral change to Obamacare that's been made without consulting Congress. 

"It shows that the Obamacare insurance products aren't selling so, at the last minute, the administration is holding a fire sale on a failed launch," says Grace-Marie Turner of the Galen Institute, a health-care advocacy group. "Just think how you must feel if you were one of the people who spent the last two months fighting their way through HealthCare.gov to buy a policy that will be thousands of dollars more expensive than this catastrophic insurance!" 

Of course, like every other exemption from Obamacare the latest fix is supposed to last only a year, raising the prospect that people will be kicked off their catastrophic coverage as soon as the 2014 election is safely in the political rear-view mirror.  

The fact that no one really knows just how Obamacare is doing (the administration is hiding the numbers) or where it's going (it's like an impressionistic painting in progress) may explain the public consensus that's developed behind delaying its implementation. This week's Fox News poll found Obamacare to still be a polarizing issue with 53 percent of respondents wanting it repealed and 41 percent wanting to keep it. But then this question was asked: "Setting aside how you feel about the law, do you think implementation of it should be delayed for a year until more details are ironed out, or not?" 

It wasn't even close. By 67 percent to 28 percent people now want the law delayed. And every demographic group agrees: 57 percent of liberals, 65 percent of women, 67 percent of those under age 35, and 60 percent of lower-income voters. Even African Americans, the bedrock of Obama's support base now favor a delay by 48 percent to 47 percent.

George Will analyzes the president's fooling with the "Take care" provision of the Constitution, where the executive must "take care that the laws are faithfully executed":

Congressional Republicans' long-simmering dismay about Barack Obama's offenses against the separation of powers became acute when events compelled him to agree with them that the Affordable Care Act (ACA) could not be implemented as written. But even before he decreed alterations of key ACA provisions - delaying enforcement of certain requirements for health insurance and enforcement of employers' coverage obligations - he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind education law; and some enforcement concerning marijuana possession; and the prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration laws pertaining to some young people.

Republicans tend to regard Obama's aggressive assertion of enforcement discretion as idiosyncratic - an anti-constitutional impatience arising from his vanity. This interpretation is encouraged by his many assertions that he "can't wait" for our system of separated powers to ratify his policy preferences. Still, to understand not only the extravagance of Obama's exercises of executive discretion but also how such discretion necessarily grows as government does, read Zachary S. Price's "Enforcement Discretion and Executive Duty" forthcoming in the Vanderbilt Law Review. Price, a visiting professor at the University of California's Hastings College of the Law, demonstrates that the Constitution's "text, history, and normative underpinnings" do not justify the permissive reading Obama gives to its take care clause, which says the president "shall take care that the laws be faithfully executed."

It is, says Price, part of America's "deeply rooted constitutional tradition" that "presidents, unlike English kings, lack authority to suspend statutes" or make them inapplicable to certain individuals or groups. Indeed, the take care clause may have been intended to codify the Framers' repudiation of royal suspending prerogatives. Hence the absence of an anti-suspension provision in the Bill of Rights.

We used to have a Congress that was jealous of its prerogatives, and would fight back against encroachment by the executive on the separation of powers. The War Powers Act - flawed, perhaps even unconstitutional itself - was one such weapon employed by past legislators.

Today, there is no attempt to stop the president from unilaterally altering the law. There isn't even much grumbling anymore from Republicans. The vast expansion of executive power that has occurred under the last two presidents will continue regardless of who wins the White House in 2016 because Congress has abrogated its responsbilities to see to it that a balance is maintained among the three branches of government.

That certainly doesn't bode well for the future of individual liberty in the US.


John Fund makes this point, among others, in his post at The Corner:

Yesterday the Obama administration suddenly moved to allow hundreds of thousands of people who've lost their insurance due to Obamacare to sign up for bare-bone "catastrophic" plans. It's at least the 14th unilateral change to Obamacare that's been made without consulting Congress. 

"It shows that the Obamacare insurance products aren't selling so, at the last minute, the administration is holding a fire sale on a failed launch," says Grace-Marie Turner of the Galen Institute, a health-care advocacy group. "Just think how you must feel if you were one of the people who spent the last two months fighting their way through HealthCare.gov to buy a policy that will be thousands of dollars more expensive than this catastrophic insurance!" 

Of course, like every other exemption from Obamacare the latest fix is supposed to last only a year, raising the prospect that people will be kicked off their catastrophic coverage as soon as the 2014 election is safely in the political rear-view mirror.  

The fact that no one really knows just how Obamacare is doing (the administration is hiding the numbers) or where it's going (it's like an impressionistic painting in progress) may explain the public consensus that's developed behind delaying its implementation. This week's Fox News poll found Obamacare to still be a polarizing issue with 53 percent of respondents wanting it repealed and 41 percent wanting to keep it. But then this question was asked: "Setting aside how you feel about the law, do you think implementation of it should be delayed for a year until more details are ironed out, or not?" 

It wasn't even close. By 67 percent to 28 percent people now want the law delayed. And every demographic group agrees: 57 percent of liberals, 65 percent of women, 67 percent of those under age 35, and 60 percent of lower-income voters. Even African Americans, the bedrock of Obama's support base now favor a delay by 48 percent to 47 percent.

George Will analyzes the president's fooling with the "Take care" provision of the Constitution, where the executive must "take care that the laws are faithfully executed":

Congressional Republicans' long-simmering dismay about Barack Obama's offenses against the separation of powers became acute when events compelled him to agree with them that the Affordable Care Act (ACA) could not be implemented as written. But even before he decreed alterations of key ACA provisions - delaying enforcement of certain requirements for health insurance and enforcement of employers' coverage obligations - he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind education law; and some enforcement concerning marijuana possession; and the prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration laws pertaining to some young people.

Republicans tend to regard Obama's aggressive assertion of enforcement discretion as idiosyncratic - an anti-constitutional impatience arising from his vanity. This interpretation is encouraged by his many assertions that he "can't wait" for our system of separated powers to ratify his policy preferences. Still, to understand not only the extravagance of Obama's exercises of executive discretion but also how such discretion necessarily grows as government does, read Zachary S. Price's "Enforcement Discretion and Executive Duty" forthcoming in the Vanderbilt Law Review. Price, a visiting professor at the University of California's Hastings College of the Law, demonstrates that the Constitution's "text, history, and normative underpinnings" do not justify the permissive reading Obama gives to its take care clause, which says the president "shall take care that the laws be faithfully executed."

It is, says Price, part of America's "deeply rooted constitutional tradition" that "presidents, unlike English kings, lack authority to suspend statutes" or make them inapplicable to certain individuals or groups. Indeed, the take care clause may have been intended to codify the Framers' repudiation of royal suspending prerogatives. Hence the absence of an anti-suspension provision in the Bill of Rights.

We used to have a Congress that was jealous of its prerogatives, and would fight back against encroachment by the executive on the separation of powers. The War Powers Act - flawed, perhaps even unconstitutional itself - was one such weapon employed by past legislators.

Today, there is no attempt to stop the president from unilaterally altering the law. There isn't even much grumbling anymore from Republicans. The vast expansion of executive power that has occurred under the last two presidents will continue regardless of who wins the White House in 2016 because Congress has abrogated its responsbilities to see to it that a balance is maintained among the three branches of government.

That certainly doesn't bode well for the future of individual liberty in the US.


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