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ObamaCare Clusterfuck: NEJM: ObamaCare delays "appear to exceed the traditional scope of the President's enforcement discretion"

Shorter: They're illegal.* The New England Journal of Medicine, the gold standard:

The Legality of Delaying Key Elements of the ACA
In the administration's view, the delays are a routine exercise of the executive branch's traditional discretion to choose when and how to enforce the law. As the Supreme Court noted in its 1985 decision in Heckler v. Chaney, 1 an executive agency “generally cannot act against each technical violation of the statute it is charged with enforcing.”

For several reasons, however, the recent delays of ACA provisions appear to exceed the scope of the executive's traditional enforcement discretion. To begin with, the delays are not “discretionary judgment[s] concerning the allocation of enforcement resources” that, per Heckler, are at the core of the executive branch's power to decline to enforce laws. Instead, they reflect the administration's policy-based anxiety over the pace at which the ACA was supposed to go into effect. The mandate delays, for example, were designed to “give employers more time to comply with the new rules.” Similarly, the postponement of the insurance requirements aims to honor the President's promise that “if you like your health care plan, you can keep it.”

To sharpen the point: even if the administration lacked the capacity or desire to take action against those who failed to comply with the ACA, it could have remained silent about its enforcement plans. Most employers and insurers would still have felt obliged to adhere to the law. Because the administration wanted to relieve them of an unwanted burden, however, it publicly committed itself to nonenforcement, thereby licensing employers and insurers to disregard the ACA's terms.

Encouraging a large portion of the regulated population to violate a statute in the service of broader policy goals — however salutary those goals may be — probably exceeds the limits of the executive's enforcement discretion. The U.S. Court of Appeals for the D.C. Circuit has said that “an agency's pronouncement of a broad policy against enforcement poses special risks that it has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” The ACA delays appear to be just such broad — and worrisome — policies.

The administration's legal claim is strongest in defending the employer-mandate delays. The Internal Revenue Service (IRS) has an established practice, stretching back at least three presidential administrations, of affording “transition relief” to taxpayers who might otherwise struggle to comply with a change in the tax code.

Extensions of transition relief, however, have typically been brief — usually just a few months — and covered taxes of marginal importance that affected few taxpayers. In 2007, for example, the IRS gave tax preparers an extra 6 months to plan for enhanced statutory penalties that would apply if they improperly filled out tax returns. Such examples provide slim support for a sweeping exemption that will relieve thousands of employers from a substantial tax for as long as 2 years.

In short, the delays appear to exceed the traditional scope of the President's enforcement discretion. ...

Obama administration's claim of enforcement discretion, if accepted, would limit Congress's ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority 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.

And executive power, once seized, is difficult to roll back.

Looks like the Obama administration is just as lawless with ObamaCare as it has been on surveillance and whacking American citizens without due process. The only difference is that ObamaCare isn't secret law; just obfustcated, not least by career "progressives," the Democratic nomenklatura, and our famously free press.

NOTE * Impeachment material, showing the kayfabe and deeply frivolous nature of Republican scandal-mongering. Their argument that the ObamaCare delays are illegal actually has merit, but instead we got and are still getting Benghazi! Fast & Furious!

Average: 5 (1 vote)


quixote's picture
Submitted by quixote on

This has been a circus from the start. Way back when, Obama was all sniffy at Hillary for saying universal insurance required a mandate. He would never do such an awful thing. Then the whole ZOMG! must pass Obamacare! Signature! Health care! Insurance! Whoopee ding ding! Then "Well, when I said you could keep your insurance, I didn't mean that insurance." Then the business of buying your insurance on a super-cool website, just like buying a TV ... assuming you're trying to buy it in the USSR and your turn comes up only on alternate Tuesdays when the moon is in Lenin. And we haven't even reached the point where people actually try to use the insurance and discover they've got themselves a peachy keen catastrophic plan that pulls multi-thousands out from under them. Then the various extensions and elongations to push actual implementation past critical elections where Obama would have to deal with being mooned by most of Congress.

Sounds like they've taken enough rope to hang themselves.

Alexa's picture
Submitted by Alexa on

or evidence-based fixes to ObamaCare in remarks either today or yesterday.

(Thought the Channel was on CNN, but accidentally got a few minutes of reporter Carl Cameron, who is the Fox News political campaign reporter. So, take it for what it is. OTOH, Cameron was very positive in this tone of reporting.)

Apparently, she also called for bipartisanship, and an end to gridlock in Washington.

(I'll try to see if I can actually get the transcript. Since I missed the intro, and don't know exactly where the speech was given, it's a bit difficult to quickly locate.)

This is very early on, but it is concerning to me that FS Clinton would be striking such a conciliatory position 2-1/2 years out from the 2016 election. Of course, this may be what we get, if there is no primary (even stalking horse) challenger.

The last thing that I want to see is an Obama-like "let's all hold hands and sing Kumbaya" campaign. (not saying that she will do this, but it does seem to crop up in speeches, lately)

Time will tell, I guess.

Oh, touché, Lambert. Your remark about Perot was spot on.

It reminded Mr A that "I" was the one who tried to talk him into voting for FP Clinton-- which he did (instead of Perot)--because of the old liberal fallback: "Perot doesn't have a chance to win!"

Wonder how many votes over the decades that the Democratic Party has garnered by "frightening" their Base, and intimidating them into believing that if they vote for a Third Party or Independent, they are "wasting their vote."

It worked on us then--but no more!


Alexa's picture
Submitted by Alexa on

"the People to keep their plans."

(Not to takeaway from the criticism of PBO's executive overreach, BTW. As much as I believe that the "individual mandate"--an ultra-conservative policy, is wrong--I don't care for the willy-nilly conservative "reforms" that the Administration seems to be contemplating.)

Bill Clinton Says Keep Your Word; Americans Kidnapped by Pirates Released; Hunger Worsens in Haiyan Aftermath; Sea World Wants Trainers Back in Water

Here's an excerpt, and a link to remarks about FP Clnton's assertion that "people should be allowed to keep their plans, per the CNN Newsroom:


That's very true. I think the answer to your first question is, is it possible? They don't really know the answer to that. And when I say they, I mean the administration.

As you said, the president said last week that he has told his team to look into how they can make changes, how they can save health plans for people who do like their current plans and want to keep them.

But the answer to your second question feeds right into that about the politics of this, because here on Capitol Hill, you are seeing more and more Democrats feel the pressure to not just say,

OK, we're going to wait for you, Mr. President, but take initiative and say that they want to try to make changes legislatively. Mary Landrieu, a Democrat from Louisiana who is up for re-election in 2014. Kay Hagan, same boat. Senator Pryor of Arkansas, same boat. They have legislation that they are pushing to say, look, if you like the health care that you have, the insurance policy that you have, you can keep it.

Never mind what House Republicans are doing, which is, they already have a vote scheduled for the end of the week with legislation along these lines.

So, everybody is sort of jumping on what Bill Clinton said for obvious reasons because the administration itself has to turn to him as almost an oracle. Somebody who is a messenger, a secretary of explaining things I think is how somebody has put it. And so for him to say it, it almost gives -- gives cover for a lot -- even more Democrats, never mind Republicans, to say this is something we need to do and we need to do fast.


Including, in fact, some liberal Democrats and close allies of President Obama.

Just a little bit earlier on CNN, Illinois Senator Dick Durbin talked about perhaps changing the law a little bit. Let's listen to what he had to say.



I think we need to look at the political reality. We need to be open to constructive changes to make this law work better. But there are those, frankly, who don't want it to work at all. If those on the other side are willing to sit down in a constructive fashion, move us toward our goal making health insurance available to more and more Americans and reducing costs, that's a good, positive thing to do.

I would say to President Clinton, if we can bring that bipartisan group together, we can start to solve some of the problems we're facing.



That's a lot of ifs there, Elise. He talks about being open to make the changes.

How could they make these changes?


It's very unclear at this point. There aren't good options at all for Congress, particularly because Republicans and Democrats still seem to be far apart on this question. And, certainly, the insurance industry has a major role to play here and they're very opposed to anything that would further delay the enrollment period, delay the individual mandate or somehow allow consumers to continue on these policy that, as you said, have been canceled.

So, I think people are intentionally vague here because they're not sure yet exactly what this solution would look like.

But it's certainly interesting that Dick Durbin, a Democrat from Illinois, made that comment today. He's sounding a lot more like his vulnerable colleagues from red states, Democrats like Mark Pryor, who have shown that they're much more open to changes to Obamacare because they're in political hot water.


The question now is, what is the White House saying about this? Let's go right now to the White House and CNN's Jim Acosta, who has just emerged, Jim, from the White House briefing, putting the questions to Jay Carney right now.

What is the press secretary saying about former President Bill Clinton?


Well, it was very interesting, John. White House Press Secretary Jay Carney said that President Obama agrees with President Clinton. That people who have lost their insurance ought to be able to keep it if they like it.

The question is, well, how is that going to happen?

And I put that question to Jay Carney because what Bill Clinton said was, even if you have to change the law.

That is not exactly what the White House has been talking about in recent days, but here's how I put it to Jay Carney.



Former President Clinton did say, I personally believe, even if it takes a change in the law, the president should honor the commitment the federal government made. So the president agrees, even if it takes a change in the law that (INAUDIBLE) --


Well what I - what I -- what I just said, Jim, is that the president has instructed his team to look at a range of options.

And we haven't announced one way or the other, although, understandably, you and others ask us for details on what is under consideration. We haven't announced any potential fixes or moves that we might be able to make to address this problem.

But the president is, as you heard him say in his interview with NBC, he's very interested in trying to address this problem and looks forward to being presented the options that he might be able to pursue.



And so you heard that there, John, the White House press secretary keeping the cards very close to the vest.

They are not talking about which options they're talking about and they had been saying for several days now that what they were really focused on were some of these administrative fixes and I did talk to an administration official who said earlier this morning that one of the things that they're looking at is, is allowing people to directly enroll through the insurance companies instead of having to go through the bug riddled website.

Well, that is very different than keeping the plan that you have right now. And, you know, this question went down the line there in the White House Briefing Room from reporter to reporter as everybody tried to press Jay Carney, well, what options do you mean? What are you talking about? Because as Dana mentioned, Mary Landrieu, endangered Democrat from Louisiana, has a proposal, if you like your plan, you can keep it.

When Jay Carney was asked about that specific plan, even though he - he dismissive some of the others coming from House Republicans, he did not really weigh in on Mary Landrieu's plan. And so, John, what you may see emerge here in the coming weeks, if this does not get fixed and this continues to be a big problem, is the White House perhaps warming up to some of those Democratic plans coming out of the Senate, especially from those senators who are up for re-election next year.


All right, Jim Acosta at the White House, getting the fresh response from Jay Carney on Bill Clinton saying people should be allowed to keep their plans. Thanks, Jim.

The problem, though, Elise, as we've been talking about, keep your plan. You can't keep a plan that no longer exists.

So, in what ways then -- what are some of the possibilities for alleviating the pain that so many people, millions by some accounts, are feeling?


I mean you make a good point, there's a huge difference in between letting people keep their plans and doing things to mitigate the negative effects of losing your plans. I think that's the key difference and that's what we're going to have to watch very closely in the coming days because it's possible that the White House will unveil a proposal to, example, give people a federal discount on their insurance coverage when they repurchase it after their plans have been canceled.

But that's very different than allowing people to retain the coverage that they already had. The idea of people directly enrolling through the insurance companies is also very interesting, but the problem there is that they won't be able to find out whether they're eligible for federal tax credits to help make their coverage more affordable, which is one of the cornerstones of these new exchanges. So, I think that the White House is in a real bind here and certainly the pressure is increasing. We'll have to watch in the coming days what they unveil. . . . (Breaking News Follows)

So, in the final analysis, my guess is that ALL Establishment (corporatist neoliberal) Democrats wanted PBO to "fix" this problem. That is, if this transcript is to be believed.

Heard Charlie Cook say last week, what I've said for over a year now--if ObamaCare is still a disaster in 2015 and 2016, Democrats may as well kiss the Presidency "good-bye."

And I think this reaction (legal or not) is a reflection of this.

Cujo359's picture
Submitted by Cujo359 on

And I think this reaction (legal or not) is a reflection of this.

I suspect you're right. By then, the first folks who couldn't use the insurance they bought for a great price on the exchanges will be telling their stories. It looks like maybe ten million or so of us were added to those "covered" in one way or another (Medicaid or insurance). Many of the newly covered will be wondering how useful that coverage is by then.

Only bright spot I see here for Democrats is that many of the people who either aren't covered or aren't adequately covered are lower income, and thus less likely to vote.

mellon's picture
Submitted by mellon on

DIDN'T work.

Thats what's so - wrong about Obamacare, they knew from the beginning that it wasn't going to work. They totally knew that, so they have been wasting our time the last six years on things that experts already knew could not work. Obviously, they are pretending they don't know it. But their actions show they do.

A bunch of the previous attempts in various states and studies that show a bunch of things they say save money, don't, are collected here.:

Also, elsewhere on the site, , have lots of stuff

Cujo359's picture
Submitted by Cujo359 on

Their argument that the ObamaCare delays are illegal actually has merit, but instead we got and are still getting Benghazi! Fast & Furious!

There are plenty of real examples of things Obama has done that are questionable, and not just from a progressive perspective, and the GOP never seems to mention any of them. Benghazi? What about Libya?

Yeah, I know...

Submitted by Dromaius on

Shut up! ;-)

I've no doubt that Obama has overstepped legal boundaries. I'm glad he did so though, at least in regard to the penalty exemption for people who had their halfway decent plans cancelled. I'm one of those people. Thus, my "insurance policy" this year consists of the $10K I banked by not buying insurance (this is the premium + deductible I would have had to pay before seeing a dime of money from insurance). I can spend it on whatever healthcare I choose. Without Obama's lawlessness, my "insurance policy" would be $10K less penalty.

The bright side of this Gawd awful law is that Obama has the law-breaking cajones to not enforce it right now.....Yes, his actions will increase premiums, but it just means my "insurance policy" will increase (see paragraph 1). When you reach a level of unjustifiable expense, it suddenly doesn't matter if prices increase. It's all unjustifiable. Yeah, this is a selfish point of view -- because survival.

I think the Republicans are going to take Congress this fall, or else in 2016, and anything that happened to be good about Obamacare will be gutted. Soooo, I'm enjoying it while it lasts. So shut up ;-) and let me enjoy it ;-).

Back to burying my head in the sand. For the sake of my health and for keeping my "insurance policy" balance high, I'm trying my hardest to avoid the whole awful scene. But I have a bad habit of coming here, sooo ;-).