A Legal Poison Pill for ObamaCare- Brian Callanan
http://online.wsj.com/news/articles/SB10001424052702303848104579308350134708922?mod=Opinion_newsreel_1
Obama’s ‘nonenforcement’ approach to the law invites the next president to undo the ACA piece by piece.
The Obama administration is in the habit of selectively enforcing the law. It has justified this practice as an expedient to bypass congressional “dysfunction” and preserve the president’s signature achievement, the Affordable Care Act. Yet that strategy may backfire on both counts. The administration’s nonenforcement gambit promises only to prolong the current legislative stalemate while preparing the way for a broader rollback of the ACA.
Chad Crowe
The major improvisations with the ACA began with a one-year suspension of the employer mandate in July 2013, based on a vague theory of executive “transitional authority.” Next, the administration granted some existing health plans a temporary dispensation from minimum-coverage requirements in a belated attempt to accommodate Americans who liked their health insurance but, due to new regulations, couldn’t keep it. Most recently, Health and Human Services Secretary Kathleen Sebelius announced that those same Americans can claim a “hardship” exemption from the ACA’s individual mandate, like victims of fire, flood and other misfortunes.
These nonenforcement decisions follow a pattern that the administration marked out in other areas of law. In 2012, for example, the White House exempted a sympathetic class of undocumented residents from provisions of the Immigration and Nationality Act and waived federal welfare-to-work requirements for several states.
Legal scholars have questioned whether the Constitution permits President Obama to categorically suspend valid laws based on political or administrative convenience. These objections deserve a serious response from the White House. But whatever view one takes of the legal pitfalls, the practical implications of the administration’s nonenforcement doctrine should trouble anyone interested in legislative action on the few issues where common ground still exists.
The hard business of legislative compromise becomes much harder in a world where the president believes he can negate provisions of a statute after its enactment. In lawmaking, as in business, parties who have no assurance that they will get the benefit of their bargain are much less likely to negotiate. A legislative compromise that assumes the enforcement of hard-won provisions will increasingly look like a sucker’s deal.
This worry has already infected the immigration debate. Last summer, many Senate Republicans conditioned their support for immigration reform on stronger enforcement, including enhanced border security and employer verification that new hires are eligible to work. But there was genuine concern about whether such measures, if enacted, would be honored by the executive branch. Those doubts look even more justified now.
Beyond deepening gridlock, President Obama’s expansive doctrine of executive discretion may prove self-defeating in another way. For the next Republican president, nonenforcement of key provisions of the ACA, based squarely on precedents set by the law’s champion, may be an enticing alternative to legislative repeal.
Take the individual mandate. Secretary Sebelius justified waiving that provision on the inventive theory that the ACA’s intended effect—the elimination of noncompliant health plans—qualifies as a “hardship” under the ACA. This is the legal equivalent of a cat chasing its tail. Elimination of what the law’s backers deride as “garbage plans” was once thought to be a blessing of the ACA, not a hardship. But Ms. Sebelius announced that cancellation-letter recipients need only request an exemption and certify that they “consider other available policies unaffordable.”
A modest extension of this rationale would make the individual mandate a dead letter. With premiums on the rise, the next Republican administration might plausibly assert that available policies continue to be unaffordable for millions of Americans due to new costs imposed by the ACA’s minimum-coverage requirements—a “hardship” under Ms. Sebelius’s logic. If that rationale applies to those whose plans were canceled, it would seem to apply equally to anyone who can no longer afford insurance due to the effects of the law. On that basis, the next administration could, like Ms. Sebelius, exempt any American who “considers . . . available policies unaffordable.”
The next president might also attempt to defang the employer mandate, which requires businesses with more than 50 full-time employees to offer health insurance that meets federal standards. Unlike the individual mandate, the employer mandate doesn’t authorize waivers of its requirements for anyone. But that didn’t stop the administration from suspending it on the ground that the reporting regime was too complex, citing the Treasury Secretary’s general authority to “prescribe all needful rules and regulations for the enforcement” of the tax code.
Suppose a Republican Treasury Department invoked the same authority, buttressed by the model of nonenforcement that the Obama administration pioneered in immigration law. The next administration could determine that the continuing cost and complexity of the employer mandate is unduly burdensome. On that ground, a new enforcement policy might exempt a particularly sympathetic class of businesses: No penalties will be assessed against any business that certifies that it cannot comply with the mandate without sacrificing jobs or cutting hours. With that, the employer mandate would recede.
It is not yet clear whether the president’s nonenforcement strategy will stave off the collapse of his health-care law in the near term. But in the long term it will prove damaging to the lawmaking process and may sow the seeds of a more complete administrative repeal of the ACA.
Mr. Callanan is a lawyer at King & Spalding LLP in Washington, D.C. He previously served as general counsel to Sen. Rob Portman (R., Ohio).
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