Obama uses “like it, keep it” logic on implementation of healthcare law

*First appeared in the July 16 edition of the Laurel Chronicle newspaper

Last week I listened to a rather intriguing presentation on the Affordable Care Act, a.k.a. “Obamacare” or “PPACA,” by law professor Jonathan Adler (not to be confused with the designer who shares the same name).

Adler has been described as one of the foremost minds in the country on legal challenges facing the healthcare law. He’s an outspoken critic of the law and has provided the framework for arguments being used in cases challenging the law that are pending before the U.S. Supreme Court (which is often referred to as “SCOTUS” in case you’re keeping track of this alphabet soup).

Healthcare policy isn’t sexy; the nuts and bolts of the law’s implementation even less so. Yet the administrative actions taken by the Obama administration raise concerns about the scope of the President’s power and the legality of an administration gone rogue.

When the President told Americans (and I’m paraphrasing) “if you like it, you can keep it,” I thought he meant health insurance. Turns out, he has applied this line of thinking to implementation of the healthcare law. Obama has kept what he liked, and delayed (or modified) what he didn’t.

That’s a pretty bold move for the executive branch, which is charged with administering, not modifying, laws passed by Congress. (Perhaps this administration may enjoy a few complimentary copies of Schoolhouse Rock?)

Here are a few examples of the wishy-washy implementation of Obamacare, as noted by Adler.

First, the healthcare law provides tax credits and subsidies for purchasing health insurance on state-run insurance exchanges, yet many states have refused to set up exchanges. This refusal creates a multitude of problems for implementation of the healthcare law, as the subsidies and credits were seen as tools to enforce both the employer and individual mandate. Obama’s solution to fixing this “problem” (read: miscalculation in Democrat strategy) was to have his Internal Revenue Service broaden the scope of the tax credits and subsidies beyond what the law allowed.

Then there’s the example of the IRS delaying the employer mandate to provide health insurance to employees. Adler alluded to congressional testimony in which the U.S. Secretary of the Treasury told lawmakers the administration had not sought legal counsel on whether such a delay met legal muster. (Why bother the lawyers on issues of law?)

The “if you like it, you can keep it” fixes allowed for grandfathering in certain plans that were in effect as of October 2013. The 3-page guidance letter issued by Obama’s Centers for Medicare and Medicaid Services (a.k.a. “CMS”) is inconsistent with the healthcare statutes, but it’s a good talking point. Forget legislative bills; now we’re making laws via “guidance letters.”

Another implementation trick included the sequester tax credit fix. Were tax credits on the chopping block during the sequester or not? The IRS couldn’t decide and actually published guidance favoring both sides of the issue. “They got it right at least once,” joked Professor Adler.

Time and again we’ve seen the Obama team keep what they like and change what they didn’t, carelessly abandoning the notion of constitutional restraints on the president’s authority.

Or so it would seem, based on the legal analysis offered by supporters of the President’s landmark legislation. Nicholas Bagley, a fellow law professor and supporter of the healthcare law (according to Adler), has written extensively on the subject of executive overreach.

Of Obama’s delays, he says that some administrative tweaks are necessary and acceptable, “yet the executive branch’s authority to decline to enforce statues is not limitless,” with recent delays of the law appearing to exceed the scope of the traditional enforcement discretion given to the executive office.

Moreover, these actions “set a troubling precedent” which, if left unchecked, “would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them.”

Whether you support the law or not, you ought to pay attention to what’s happening in D.C. Obamacare may kill our economy, but the greater threat is a President who tilts our system of checks and balances in favor of a stronger executive branch.