President Obama says he can “fix” the millions of canceled health insurance plans with an administrative change. He’s claiming more executive power – power for himself – than the Constitution allows, and is playing fast and loose with the truth.
The culprit behind the cancellations is not an administrative regulation, as he claims. It’s Section 2702 of the Affordable Care Act. It says all plans sold in the individual market or small-group market on Jan. 1, 2014, or later must include the Essential Benefits Package.
This means 10 categories of health coverage the Washington “experts” deem essential, such as maternity care even if you’re 50 years old. Plans are being canceled because they don’t have all 10.
Only Congress can dispense with the deadline. Last Friday, the House of Representatives passed a bill to do that. (Insurers and insurance commissioners in several states have said the “fix” is too late to retool by Jan. 1.) Nevertheless, the House bill is a legal attempt to stop the mass cancellations.
Amazingly, our arrogant president says he will veto that bill if it reaches his desk because it would allow insurers to sell the noncompliant policies to new customers as well as old. The real reason is that Obama wants to rule by edict.
This particular edict could put taxpayers on the hook for a hefty amount. The American Academy of Actuaries warned that the fix is likely to cause healthy people to stick with their old plans, leaving the sickest in the new exchanges. That will clobber exchange insurers.
Section 1342 of the law set up a mechanism to bail out insurers that incur losses. It’s funded by fees on insurers and employers. The actuaries predicted the pot of money might not be enough.
“Costs to the federal government could increase,” the group warned. The incorrect part of the actuaries’ statement is “costs to the federal government.” The federal government has no money. It’s our money.
Obama often brushes off critics of the health law by saying ObamaCare is “the law of the land.” (Except when he wants to patch it up himself.) “It passed the House. Passed the Senate. The Supreme Court ruled it constitutional … it was the central issue in last year’s election. It is settled.”
That’s a claim you could make about the Affordable Care Act. But not about ObamaCare – the ad hoc health reform the president is rolling out. Obama himself has stripped the law of key components such as the employer mandate and then padded it with handouts to favored constituencies.
On Aug. 9, the president was asked where he gets the authority to make these changes.
“In a normal political environment,” he replied, “it would have been easier for me to simply call up the Speaker (of the House) and say: ‘You know what? This is a tweak that doesn’t go to the essence of the law – so let’s make a technical change in the law.’ That would be the normal thing that I would prefer to do.”
He’s suggesting these are not normal times, just because Republicans control the House. Sorry, Mr. President, but divided government – with an uncooperative Congress – is the norm.
Don’t be shocked if a renegade insurance company sues to stop the president’s most recent fix. Insurers have invested hundreds of millions of dollars creating and marketing health plans that conform to the Affordable Care Act.
Lower federal courts already are smacking down the president for his footloose way with the law. Though the Affordable Care Act says only state exchanges can provide subsidies to health plan enrollees, the Obama administration is trying to offer subsidies in all 50 states, rather than just in the 14 states that set up exchanges. The administration has tried to get these lawsuits dismissed, but so far has failed twice.
This isn’t just about ObamaCare. On Aug. 13, the D.C. Circuit Court of Appeals ruled against the president for failing to obey a 2002 statute that required the executive branch to take final action on the certification of Yucca Mountain as a nuclear waste site.
Judge Brett Kavanaugh ruled that “under Article II of the Constitution and relevant Supreme Court precedents, the president must follow statutory mandates.”
In our country, the rule of law is king, not Mr. Obama.
This commentary appeared at AIM.org and is reprinted here with permission.
Photo credit: terrellaftermath