Eugene Kontorovich:
The fix is not in.
One week later, states are still wrestling with whether to implement Barack Obama’s answer to the wave of dropped plans that greeted the launch of his signature health care initiative. The president’s “fix,” announced last Thursday in a somber news conference, allows insurance companies to renew policies that do not meet the minimum care standards of the Affordable Care Act (ACA), which go into effect on Jan. 1.
So far, only 13 states have said they will cooperate with the administration’s initiative, however, and some have refused. The debate has turned mostly on questions of actuarial policy. But the bigger problem states must consider is that the fix itself is unconstitutional. And even if the president did have the authority to take such action, state compliance with it would still break the law.
First, the fix exceeds the president’s discretion in implementing the law and amounts to legislation from the White House. The president has no constitutional authority to rewrite or unbundle statutes, especially in ways that impose new obligations on people, as the fix does.
But the Obama administration claims an “inherent authority to exercise discretion” in enforcing laws by not enforcing key parts of the ACA at all for one year. And how does argument that hold up? Not very well. Certainly, the chief executive has some discretion to decide how strongly to apply a law, and the timing of enforcement. However, complete non-enforcement of multiple statutes without any argument that they are unconstitutional certainly tests the limits of that discretion.
The difference between executive discretion and rewriting a law can be blurry, but the latter can generally be characterized as involving broad policy, while the former involves particular circumstances that arise in the administration of a law. (To put it differently, enforcement discretion goes to how a law is implemented, not if.)
It is hard to think of anything more like broad policy than the central provisions of what has been called the most significant piece of legislation in a generation. Moreover, Congress is actively working on similar measures, but with differences the president considers objectionable. This further demonstrates the primarily legislative nature of the fix.
Indeed, far from mere “non-enforcement,” the fix imposes entirely novel requirements on insurers. Insurers have to make a variety of disclaimers and statements against interest to benefit from the non-enforcement. This is not a requirement found in the Affordable Care Act or its attendant regulations. The new requirements for insurers are highly detailed, showing this is thus not simply a delay, but substantive new regulation, adopted by dictate.
The second constitutional infirmity relates not to Congress, but the states. Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.