More Lawlessness on Obamacare

Rule of Law by from The Weekly Standard, May 7, 2014

It is becoming increasingly apparent that President Obama’s notion of governance is that federal laws should be passed to cover as much of human life as possible, and that he should then decide which of those laws to enforce, when, and against whom. The latest example of Obama’s selective enforcement of oppressive legislation is his decree that Obamacare’s hated individual mandate won’t be enforced for those who didn’t have Obamacare-compliant insurance during the 4-month stretch from January through April of this year. This, despite the fact that Obamacare’s actual text states that anyone who goes even three consecutive months without Obamacare-compliant insurance in this year must pay the penalty established in law for violating the individual mandate. A 2-month grace period in law has therefore become a 4-month grace period in practice.

Obama likes to talk about taking matters into his own hands if Congress won’t do what he wants (the constitutional separation of powers notwithstanding). Yet just two months ago, the House of Representatives passed legislation to delay the individual mandate (specifically, to make its penalty $0 for this year), doing so by a margin of 90 votes (250 to 160)—or 83 more than the 7-vote margin (219 to 212) by which the Democrats passed Obamacare in the first place.  Moreover, 27 Democrats voted for the individual-mandate delay. Shortly before that vote, however, the White House issued a statement in which it said that if Obama were presented with the legislation (which would require Harry Reid to allow a vote on it in the Senate, which he hasn’t), “he would veto it.” Now, just two months later, Obama has taken it upon himself to pronounce, extralegally, that there will be a 2-month delay to the individual mandate—instead of kicking in on March 1, as the text of the law would seem to require, it will kick in on May 1.

The Obama administration claims that this delay constitutes a “hardship” exemption. But according to, hardship exemptions apply to things like being homeless, suffering at the hands of domestic violence, or experiencing “a fire, flood, or other natural or human-caused disaster that caused substantial damage to your property.” Who knew that the “hardship” could simply be that Obama wanted to be able to extend the open-enrollment period to increase Obamacare’s (still lame) enrollment numbers and didn’t want to have to explain afterward to enrollees why they still got fined. In other words, this was a political hardship, granted by and for Obama.

It is also yet another Obamacare promise broken by this administration. On March 12, the Hill wrote:

The Obama administration will not delay ObamaCare’s individual mandate or the March 31 deadline for enrolling in the new healthcare law, Health and Human Services Secretary Kathleen Sebelius said [today].

Sebelius ruled out the changes during testimony to the House Ways and Means Committee, where Rep. Kevin Brady (R-Texas) noted the administration has made dozens of other changes or delays to the law.

Given the problems caused by ObamaCare’s faulty website last year, Brady asked Sebelius directly if delays to the individual mandate or enrollment deadline would be next.

‘No, sir,’ Sebelius responded.

In that same report, the Hill added:

On a conference call with reporters [earlier this week], Centers for Medicare and Medicaid Services spokeswoman Julie Bataille said even if officials wanted to, her agency didn’t have the authority to delay the enrollment deadline.

‘We have no plans to extend the open enrollment period,’ Bataille said. ‘In fact, we don’t actually have the statutory authority to extend the open enrollment period in 2014.’

These actions that the administration said it wouldn’t undertake, didn’t have the authority to undertake, and now has undertaken, have also strained the alliance between big government and big insurers that’s at the heart of Obamcare.  But as Jay Cost and I note in this week’s issue, Obama got around that as well—at taxpayer expense. To placate his insurance allies, Obama rewrote the rules for Obamacare’s reinsurance and risk-corridor programs, and the Congressional Budget Office says his tweak to risk corridors saved insurance companies $8 billion. To put that $8 billion into perspective, it’s as much as the nation’s 10 largest health insurers made in combined profits the year before Obama took office.

(To keep Obama from continuing to use the risk-corridor program as his personal slush fund—and from using that slush fund to bankroll his lawlessness—Sen. Marco Rubio and Rep. Leonard Lance have each proposed 1-page bills, which simply state that the risk-corridor program cannot be used to transfer money from taxpayers to insurance companies.)

It is time for Congress to do more to call Obama out on his lawlessness. But it’s also time to wipe the slate clean. It’s time for Obamacare opponents to win the Senate, pass a well-conceived conservative alternative, and send it to Obama. Under such an alternative, health costs would drop, liberty would be secured, and anyone who wants to buy health insurance would be able to do so.  After Obama vetoes that effort at real reform, it will set up a clear choice for the citizenry:  Do we want a subsequent president who will continue to do everything possible—both within and without the law—to prop up Obamacare’s failed 2,700 pages of federal largess, or one who will sign legislation that simultaneously repeals Obamacare and replaces it with a well-conceived conservative alternative?  Polling indicates Americans overwhelmingly support the latter course of action.

© 2014 Weekly Standard LLC. Reprinted with permission.