November 15, 2013

Obama's IYLYPYCKYP fix isn't legal.

Jonathan Adler argues:
According to various press reports, the Administration argues it may do this as a matter of enforcement discretion.... In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law....

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law....
I've got to run, but if I had more time I'd try to compare this to the efforts at "legalizing" marijuana in Washington and Colorado — a gigantic felonious conspiracy —  while the Justice Department says it won't enforce.

68 comments:

Michael K said...

The insurance companies can't possibly accept this "fix" as they would be incurring huge liability. I would like to hear the discussion he has with them.

Matthew Sablan said...

I'm pretty sure the fix is in.

Michelle Dulak Thomson said...

To put a question I also put at Volokh: What does it mean to say that such plans are "illegal under federal law"? Is it illegal to buy or sell (or both) insurance that isn't PPACA-compliant? Or is it merely that such insurance (say, a catastrophic plan plus an HSA) doesn't count as "insurance" per the PPACA, so that anyone enrolled in such a plan is still "uninsured" and therefore subject to the tax/penalty?

Original Mike said...

"At this point, what does it matter?"

St. George said...

If only our President had been something like a professor of Constitutional law. Too bad he has no legal training.

Rob said...

Surely a company knowingly engaging in unlawful conduct--albeit unlawful conduct that is not being prosecuted--is obliged to report that to its regulator and its shareholders. For most companies, that should be a dealbreaker.

rehajm said...

what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues?

Ask the banks- It's a trap! Entice the insurers into offering illegal policies then flog them with this noncompliance from every angle imaginable.

tim in vermont said...

It is perfectly legal because ... racism!

Curious George said...

I had liberal friends post "Ha ha" on my facebook page the day after Obama was re-elected. I simply said to keep laughing, because they would also have to live with the clusterfuck that a grifter like Obama would create. Yes, he can lie and get elected. He can pull these little stunts to cover his ass. But he cannot change reality, and this latest attempt is only making it worse. Obama is in a death spiral. History will not be kind.

Paddy O said...

It seems ObamaCare from beginning to end is a goal in search of legal justification. It's not Constitutional, but Roberts declares it a tax, thus it is legal. It runs into problems of implementation at every step, but no worries, Obama declares changes.

We have become a nation of laws to a nation of ex cathedra pronouncements.

Leeatmg said...

As a matter of curiosity, doesn't the HHS have the authority to choose the dates each of these requirements goes into effect? In other words, can't they just say the requirements are being delayed, or were these dates written into the law?

I'm just curious - and not about to read the whole bill to find out what's in it. Like Congress.

I'm just wondering if they have an "out" for blatantly ignoring the law.

Original Mike said...

@Michelle - An analysis I heard was that non-compliant plans are not "illegal". An insurance company could offer them and you could byt them, as long as you also paid the penalty. If there was enough demand, insurance companies might find it worth their while to offer them. Or, a Tea Party Insurance Company might be formed.

Not sure if that's right, but that's what I heard.

Matthew Sablan said...

For everyone beating on Roberts' decision, I'm reminded he basically said: "You get what you vote for, deal."

I think he gave the administration rope, they decided to hang themselves with it.

jacksonjay said...

I'm puzzled as to why he wants to push all of this down the road to pre-election 2014! They (he knows nothing) must really be more delusional than devious!

"Enforcement discretion" is now like impeachment, a political remedy?

"I feel so bad about all of those Democrats who repeated my mysleding statements! Don't blame them, it's on me!"

Hari said...

Obama seems to understand the law about as well as he understands the Internet.

jacksonjay said...

To Mr. Curious George,

I told them to "hold the phone," the Second Term Curse is a bitch! SUCKERS!

Matthew Sablan said...

As for why push it back? Because he honestly thinks that they can fix it. With just a few smart people, and a little bit more thinkin', they can fix it.

It isn't cynicism or anything of the sort; it is straight up hubris.

Tank said...

Rand Paul was talking about his today and mentioned the "standing" problem. I'm not well versed on that issue, but wonder what Althouse (or others) think. Ya gotta get in the Courthouse before you can start arguing constitutional issues.

SeanF said...

Michelle Dulak Thomson: To put a question I also put at Volokh: What does it mean to say that such plans are "illegal under federal law"? Is it illegal to buy or sell (or both) insurance that isn't PPACA-compliant? Or is it merely that such insurance (say, a catastrophic plan plus an HSA) doesn't count as "insurance" per the PPACA, so that anyone enrolled in such a plan is still "uninsured" and therefore subject to the tax/penalty?

Michelle, that's a very good question, and I don't know the answer.

It seems to me, however, that one of the expressed purposes of the law is to "protect" customers from those unscrupulous insurance companies (it's right there in the name, after all - the "Patient Protection and Affordable Care Act."

I thus find it unlikely that the law would allow insurance companies to continue to sell non-compliant policies at all.

Did you ever get an answer at Volokh?

RecChief said...

this is ahrdly the first time this administration has used this gambit, and not just with legalizing marijuana either

Original Mike said...

OTOH - You'd have to get any insurance policy past the state insurance commission.

RecChief said...

If I was an insurance company executive, I wouldn't open my mouth until all 50 state insurance commissioners had weighed in.

CatLover said...

Mathew said: "For everyone beatting on Roberts' decision, I'm reminded he basically said: "You get what you vote for, deal."

Then why bother having a Supreme Court? Richard's legal reasoning was inept.

The Pres should be impeached. He swore an oath to enforce the law, and he's admitted he "intentionally" does not plan to follow his oatch.

tim in vermont said...

President Romney. Couldn't have an honest man as president because Cult! Racism!

damikesc said...

It's sad that there is nobody with standing to sue. This is a blatant breach of the Constitution.

If I was President, I'd end ALL regulations that weren't described explicitly in legislation. Trim back the power tremendously.

Also, Obama's legendary Constitutional knowledge is a myth. What happens if there is any legal dispute over an "illegal" policy under Obamacare? Saying the Justice Dept won't do anything isn't the same thing as saying the insurer wouldn't be on the hook horribly.

MadisonMan said...

The Executive Branch there to enforce the laws that have been passed.

The Legislative Branch long ago ceded a lot of its oversight to the Executive, and now the Executive is passing on its job.

Doesn't anyone in DC do the work they're supposed to do?

Michael The Magnificent said...

In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law....

Until the "Administration" decides to selectively begin enforcing the law against insurance companies which haven't payed sufficient tribute to the DNC.

All those who paid tribute, however, get to keep their exemptions from the law.

Unknown said...

How does Sierra Club have standing to suing the EPA for not following applicable law?

Could a law be passed to provide "standing"? Like any citizen can file suit for...failure of a government official or organization to execute applicable laws?

Jane said...

Trying to think of a similar instance, where the government has declared that they're going to delay enforcement of the law. Guess it's similar to fuel economy laws, and the mess that would be created if a law required, on 1/1/2014, that all cars sold have a fuel economy of 50 miles per gallon; the car companies introduced the new model year and everyone freaked, and Obama declared "never mind. Sure, it's illegal, but we won't enforce for another year."

PB Reader said...

a public company can not knowingly violate federal law regardless of a verbal promise they won't be prosecuted.. knowingly violating federal law will open up the executive and officers of the company to shareholder in customer lawsuits. it would be a breach of their fiduciary responsibility

C Stanley said...

With regard to standing, isn't there a different remedy (impeachment)? Strictly speaking the failure to enforce a law is a violation of his oath of office, not a crime (I think?) but isn't he part of a criminal conspiracy for suggesting to the insurance companies that they should violate the law and he will look the other way?

Sigivald said...

I've got to run, but if I had more time I'd try to compare this to the efforts at "legalizing" marijuana in Washington and Colorado — a gigantic felonious conspiracy — while the Justice Department says it won't enforce.

10th Amendment, and Article 2.

The Federal government has no legitimate power whatsoever to regulate intra-state Commerce.

(Or, for that matter, to ban drugs in the first place, without an Amendment like that which let them ban alcohol; if Prohibition required an Amendment - and Congress and the Courts sure seem to think it did - so does a ban on marijuana or cocaine or heroin or any other drug.

That such bans are popular for reasons of Moral Panic doesn't change the Constitutional problem.)

That the Supreme Court has said that even non-commerce in a State is still "Interstate Commerce" enough (Raich) is, morally at least, irrelevant - the Court is simply, plainly wrong, as Thomas' dissent in Raich pointed out.

If words are to have meanings at all, "Commerce among the several states" must involve commerce between the States in the act being "regulated".

Merely affecting the market itself indirectly cannot suffice; if it does, the Article II grant of power to regulate said commerce is identical to regulating all commerce and most non-commerce.

Which is facially nonsensical, because it's worded exactly as a much, much more limited grant of power.

Bill R said...

This "Enforcement Discretion" idea is interesting.

Traditionally, this is a matter of priorities. For example, possession of small amounts of marijuana is prosecuted less vigorously than the operation of a large scale meth lab.

Obama's innovation is using the discretion to invalidate laws he doesn't like or to immunize people he does like.

This could turn out very badly. For example, it's illegal for a Federal Employee or agency to target citizens based on political activity. However if the feds knew that "Enforcement Discretion" would effectively immunize them, then someday the IRS or ATF or EPA might start targeting the President's political enemies. It's farfetched but it could happen.

Oh wait.

damikesc said...

Why is nobody noticing the elephant here?

This is a TAX. When the Hell did anybody get the power to decide to ignore taxes for certain people or groups?

These aren't asinine regulations. Tax law doesn't give anybody real discretion on this.

n.n said...
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Brennan said...

If only our President had been something like a professor of Constitutional law.

President Obama was never a professor of anything. He was adjunct scholar at the University of Chicago. This position did not exist. It was created for him by the Dean of the law school.

n.n said...

This didn't start with Obama, but there is a history of selective rule of law. Not the least of which is immigration enforcement, which, among other reasons, is a justification for Obamacare's conception.

Brennan said...

As a matter of curiosity, doesn't the HHS have the authority to choose the dates each of these requirements goes into effect? In other words, can't they just say the requirements are being delayed, or were these dates written into the law?

The law said the HHS Secretary was empowered to choose a date. But it does not say they are allowed to change the date after it is chosen.

Brennan said...

I think the President is fine on choosing not the enforce the law. The Congress should immediately start the impeachment process.

We are a banana republic if the Congress does not hold the Executive accountable for its cafeteria approach to execution of the law.

Michelle Dulak Thomson said...

SeanF,

Did you ever get an answer at Volokh?

One commenter replied that his understanding is that it is illegal under the PPACA to offer a non-compliant plan, whether the purchaser pays the tax/penalty or not. Remarkable if true.

Ambrose said...

Of course insurance companies - which are state regulatd - cannot engage in unlawful activity even if the laws won't be enforced. That is not the intent - it's just to allow Democrats to deflect blame from themselves to the insurance companies.

Paul said...

The Presidents Oath of Office:

http://en.wikipedia.org/wiki/Oath_of_office_of_the_President_of_the_United_States

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Note- DEFEND THE CONSTITUTION.

And Clause 5 of Article 2 of the Constitution.

The President must "take care that the laws be faithfully executed."

THAT SURE DOES NOT MEAN IGNORING THEM OR FAILING TO EXECUTE THE LAW, AS WRITTEN.

What Obama has done is illegal and subject to impeachment. But the Democrats don't have the guts to convict him.

But a warning, what goes around... comes around.

traditionalguy said...

The Lawless One is an absolute ruler.

Many love Him. But us whigs quote the Law passed by the Representative Assembly.

The 1600s return.

tim in vermont said...

"The Federal government has no legitimate power whatsoever to regulate intra-state Commerce."

Ha ha ha ha ha

http://en.wikipedia.org/wiki/Wickard_v._Filburn

damikesc said...

Of course insurance companies - which are state regulatd - cannot engage in unlawful activity even if the laws won't be enforced. That is not the intent - it's just to allow Democrats to deflect blame from themselves to the insurance companies.

That this "fix" runs through the midterms only is proof-positive of this. I don't think it could be more nakedly partisan.

Brennan said...

That this "fix" runs through the midterms only is proof-positive of this. I don't think it could be more nakedly partisan.

Certainly the press will report these rather inconvenient facts.

Freeman Hunt said...

These are the promises graft is made of.

Michael K said...

Obama is now threatening to veto the Upton Bill .

Napoleon said, "Never interfere with an enemy which is destroying himself."

damikesc said...

Indeed. Let him veto it or Reid kill it.

Then...do nothing.

The Upton bill was a bit of a mistake as conservatives were already slandered for trying to resolve the problem.

Man, wouldn't Obama love the lifeline Lee and Cruz offered him last month?

Basil said...

Napolean also said "I think its a good idea to invade Russia."

Bill, Republic of Texas said...

Tank said... Rand Paul was talking about his today and mentioned the "standing" problem. I'm not well versed on that issue, but wonder what Althouse (or others) think. Ya gotta get in the Courthouse before you can start arguing constitutional issues.

11/15/13, 11:14 AM

There is no such thing as "law". Its all BS. If they want to find standing they will find it. If they don't they wont.

Examples:
how can a line item veto be unconstitutional but what Obama is doing constitutional?

How can a law be a tax when it says (and sold) as a not a tax?

Matthew Sablan said...

What is this I'm hearing about the Upton vote being a bi-partisan success?

nonapod said...

Apparently there's grumblings that the Centers for Medicare and Medicaid Services may be able to provide a "bailout" for Insurance companies who provide these illigal plans at a financial loss using something called a "risk corridor" program, which will no doubt equate to billions and billions. So much for "not adding one dime" to our debt.

Lance said...

@Michelle Dulak Thomson
What does it mean to say that such plans are "illegal under federal law"?

Adler has an update at his post addressing that question.

Michelle Dulak Thomson said...

nonapod,

See Megan McArdle's new post on this. The gist is that the "risk corridors" can be used to lessen the losses, but not to turn losses into profits. Which doesn't mean that we (the taxpayers) wouldn't still be out a lot of money.

Jason said...

The surest way to get a bad law repealed is to enforce it strictly.

Kirk Parker said...

Brennan,

Your second paragraph could have just ended after the first four words. :-(

Peter said...

"The law is just what I say it is- no more, and no less!"

-- Legal analysis, Chicago style.

Left Bank of the Charles said...

We only need one law, "everything is illegal." Governance can then be left to enforcement discretion.

Likewise, I would think one might cite the text of the statute in making the argument that it is illegal for the President to do this.

Left Bank of the Charles said...

"When the President does it, that means it is not illegal." - Richard Nixon

Left Bank of the Charles said...

"One thing I'd do on day one if I'm elected president is direct my secretary of health and human services to put out an executive order granting a waiver from Obamacare to all 50 states." - Mitt Romney

Left Bank of the Charles said...

42 USC Section 300gg-6(a)": "A health insurance issuer that offers health insurance coverage in the individual or small group market shall ensure that such coverage includes the essential health benefits package required under section 18022 (a) of this title."

What does it mean to offer in the market? If an insurer is simply letting its existing customers keep a plan they already had, how is that illegal, assuming the plan was legal when offered?

Hagar said...

The insurance companies cannot deal with this as it was on the federal level, and with half the state insurance superintendents not going along with Mr. Obama, there is absolutely no way.

Medical insurance companies are jumbo jets, not stunt planes.

DanTheMan said...

What happens when somebody with one of those “sub-standard” plans that they can now “keep” files a claim for an ACA-mandated benefit condition that their plan doesn't cover?
Their plan says it’s not covered. The ACA, which is “The law of the land” requires coverage.
The insurance company really only has two options: Pay the claim, or don't pay.
If they pay, everybody will drop their full-featured plans, and buy the substandard ones. That’s an instant death spiral, and the insurance company takes a huge financial hit.
If they refuse to pay, they will get sued by all those plaintiff’s TV lawyers for “cheating” people out of the benefits that federal law requires they provide.
If they chose not to reissue/extend those substandard plans, it will be “proof” that Obamacare had nothing to do with those cancellations.
In all the scenarios, insurance companies take the financial hit, or the blame.
Nicely played, Mr. President.

DanTheMan said...
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DanTheMan said...
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poppa india said...

"When the President does it, that means it is not illegal" - Richard Nixon

And look what happened to Nixon, told by GOP party leaders he had to go. Do you think we'll see that happening with the DEM leaders?

Zach said...

I've got to run, but if I had more time I'd try to compare this to the efforts at "legalizing" marijuana in Washington and Colorado — a gigantic felonious conspiracy — while the Justice Department says it won't enforce.

What a bizarre comparison.

1) The states have police powers, not the Feds.

2) The states changed their statutes, rather than administratively announcing that some laws wouldn't be enforced.