So Many Changes To The Health Law, But Are They All Legal?

So Many Changes To The Health Law, But Are They All Legal?

By Tony Pugh, McClatchy Washington Bureau

WASHINGTON — After President Barack Obama bowed to critics in November and allowed people with canceled health insurance policies to keep their coverage for another year, the White House quickly hit the spin cycle.

In a telephone briefing with reporters that same day, senior administration officials said their “enforcement discretion” allowed them to tweak the Affordable Care Act to ensure that it would be implemented with minimal disruption.

Previous administrations had done the same thing with complicated new laws, they said, and the slow-motion rollout of the sprawling health care law was sure to encounter more problems along the way.

“As we see them, we’re going to fix them,” a senior official said.

Over the next few months, the administration would see much that needed fixing. They twice changed the deadlines for people to enroll in coverage that began on New Year’s Day 2014. They granted two one-month extensions of a transitional insurance program for people with severe medical problems. They allowed people with canceled policies to seek hardship exemptions from the “individual mandate” — which requires most Americans to have health insurance — if they couldn’t find affordable catastrophic coverage.

And two weeks ago, the administration delayed — for the second time in less than a year — enforcement of the “employer mandate,” a key provision that requires employers to provide affordable health coverage to all full-time workers.

The mandate was supposed to take effect this year, but it was first delayed until 2015. Now midsize employers have until 2016 to comply. The administration also changed the rules to allow larger employers to phase in their new coverage requirements over the next two years.

The flurry of on-the-fly fixes has sparked outrage from Republicans and conservative legal activists who say the moves are executive power run amok — an illegal, politically motivated rewrite of the law.

“Scarcely a day goes by that I don’t have a call or an email from someone who is trying to think about what the legal response to this could be,” said Michael McConnell, a conservative law professor and director of the Constitutional Law Center at Stanford Law School. “It’s really getting to the point where I just can’t see how the attorney general can put his name to a legal opinion that this is lawful.”

But the executive branch has great flexibility and discretion to make reasonable changes when implementing complicated new legislation. And that doesn’t violate statutory law, said Simon Lazarus, a senior counsel at the Constitutional Accountability Center, a liberal think tank and public interest law firm. Nor does it violate the president’s responsibility under the Constitution to “take care that the laws be faithfully executed,” he added.

“Making sensible adjustments in the timing of the implementation of laws like this is precisely what the framers expected of a president when he is exercising his duty to see that the laws are faithfully executed,” Lazarus said.

The so-called “take care” clause of the Constitution gives the president wide discretion to determine how and when to implement and enforce laws, he said.

“That means he may not robotically follow a particular statutory deadline if to do so would make the law less, rather than more, effective,” Lazarus said.

But many say the latest employer mandate delay was more about politics than underlying implementation problems. The move conveniently removed a powerful Republican line of attack against vulnerable Democrats before next year’s midterm election.

“How can they ever truly implement this program if they’re going to back off every time the Democrats in Congress get nervous?” said Paul Ginsburg, a senior fellow at Mathematica Policy Research, a think tank. “It strikes people as a lack of fortitude in moving this forward.”

Administration officials have said their “enforcement discretion” allows them to mend or alter policies that ease the transition of a substantial change in the law. The employer mandate delays are a prime example. So is the Deferred Action for Childhood Arrivals program of 2012, which allows the government not to deport immigrants who were brought to the U.S. as children or who meet other specific requirements.

Much of the executive branch authority to make these kinds of changes in law without approval from Congress dates back to the New Deal era of President Franklin Roosevelt. A series of Supreme Court decisions created the “modern executive state,” in which Congress passes a law and government agencies write the rules and regulations to implement it, said Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute, a libertarian think tank.

Most of the changes in the law and the adjustments stem from the difficulty of “trying to layer reforms on top of a byzantine health system,” said Oberlander of UNC-Chapel Hill. It didn’t help that the law’s passage required political concessions and compromises that made it even more unwieldy.

“To me, most of this is just learning as they go along and trying to fix new holes that spring up,” Oberlander said. “It just underscores how difficult health care reform is and the limits of the Affordable Care Act. And there are some very real limits.”

AFP Photo/Joe Raedle


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