On Monday, the Obama administration announced — again — that it was delaying some provisions of the Affordable Care Act. The administration believes that changing these provisions is politically necessary to curb the growing distemper over the many unintended effects of the health care law. Now the Treasury Department has declared that it will give companies with 50 to 99 employees another one-year delay before the law’s penalties begin to bite them.
The problem here is that the administration cannot do this without the assent of Congress.
It’s possible that the label of “Obamacare” has emboldened President Obama to believe that he is unilaterally responsible for the success or failure of the health care law. But Congress, the courts and the American public should not let the administration take these powers unto itself.
The Affordable Care Act is overly burdensome, and its mandates should be eased or erased. But these changes must come from Congress. Once a law is passed by Congress, and once it has been deemed constitutional by the Supreme Court, the responsibility for execution and enforcement — not continual change — falls to the executive.
The administration does not have the prerogative to continually delay particular provisions according to political calculations. To permit the president to change laws without legal process is to become a lawless nation.
The fact that the administration has changed the implementation of the ACA before is symptomatic of the problem. Among the many previously unauthorized changes: exempting members of Congress from the health care exchanges, delaying the law’s application to employers by one year, and repeated extension of the period of time in which individuals could enroll in health care exchanges.
The administration has claimed that it may offer “transition relief” in implementing the law. That is only true when Congress delegates the authority to alter deadlines or otherwise resolve administrative details.
“The Obama Administration is not the first to take liberties with the laws it is charged with executing, and it will not be the last,” said Jonathan Adler, a professor of constitutional law at Case Western Reserve in the Washington Post, speaking of this latest extension to Obamacare.
“Yet the increasing brazenness with which the Administration is disregarding inconvenient or ill-conceived portions of its signature legislative achievement lowers the bar to a disturbing degree," said Adler. "Even where ad hoc administrative revisions seem justified to ease the law’s implementation, such moves are illegal if not authorized by Congress. The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them.”
Obama has made much of his desire to act even when he faces a House of Representatives that opposes him. In the State of the Union address a fortnight ago, he outlined actions that the administration would take absent congressional action, including the use of executive orders.
Concern about lawlessness, however, is not with the use of executive orders per se. In the case of the all too frequent changes to implementation of the ACA, the problem is changing the law without or contrary to the will of the people’s representatives in Congress.