Administration Creates Yet Another Partial Delay Of Obamacare Provision, Rule Of Law Suffers
Once again, the Administration has unilaterally changed the Affordable Care Act.
As it has done in the past, late yesterday took the opportunity to include in a late afternoon news dump on a day when many people are already beginning to tune out in preparation for Christmas the news that they were creating yet another exception to the requirements of the Affordable Care Act:
WASHINGTON — Millions of people facing the cancellation of health insurance policies will be allowed to buy catastrophic coverage and will be exempt from penalties if they go without insurance next year, the White House said Thursday night.
Kathleen Sebelius, the secretary of health and human services, disclosed the sudden policy shift in a letter to Senator Mark Warner, Democrat of Virginia, and five other senators.
It was another effort by President Obama to cushion the impact of the health care law and minimize political damage to himself and Democrats in Congress who adopted the law in 2010 over solid Republican opposition.
In recent weeks, insurers have told many people that their insurance policies were being canceled because they did not comply with the minimum coverage requirements of the law. Insurers usually offer to replace the coverage with new policies that do comply, providing more benefits at higher cost.
The Department of Health and Human Services issued a bulletin on Thursday advising consumers, “If you have been notified that your individual market policy will not be renewed, you will be eligible for a hardship exemption and will be able to enroll in catastrophic coverage.”
The help for people with canceled policies was offered late Thursday, just four days before the deadline for people to sign up for coverage that starts on Jan. 1.
Ms. Sebelius said the goal was to ensure “the smoothest possible transition” for people seeking new coverage after cancellation of their policies.
Mr. Obama initially tried to address a furor over the cancellations by asking carriers to reinstate the policies. But some insurers and some state officials did not go along with his request, so the White House looked for other ways to address the problem.
Before the action announced Thursday by the White House, Republicans had said it was likely that the number of cancellations would exceed the number of people obtaining private coverage through the new insurance exchanges this year. Nearly 365,000 people selected health plans in the exchanges in October and November, before a big increase reported early this month.
Catastrophic plans provide basic coverage and are generally available on the exchanges only to people who are under 30 or qualify for a hardship exemption from the requirement to carry insurance.
The White House action is sure to embolden Republicans clamoring for a broader exemption that would be available to all Americans. The White House opposes such an exemption, saying it would blow up the keystone of the 2010 law.
Mr. Warner and the five other senators said the hardship exemptions would provide “transition relief” to constituents who they said were upset about the cancellation of insurance policies.
The Obama administration broadly defined who can qualify. “If the consumer believes that the plan options available in the marketplace in their area are more expensive than their canceled health insurance policy, they will be eligible for catastrophic coverage through a hardship exemption,” the administration said.
Insurers, already struggling with problems caused by the chaotic debut of the federal insurance exchange in October, expressed surprise and dismay.
“This latest rule change could cause significant instability in the marketplace and lead to further confusion and disruption for consumers,” said Karen M. Ignagni, the president of America’s Health Insurance Plans, a trade group.
Ezra Klein notes that this places the entire individual mandate in a very shaky position:
6. But this puts the administration on some very difficult-to-defend ground. Normally, the individual mandate applies to anyone who can purchase qualifyin”hg insurance for less than 8 percent of their income. Either that threshold is right or it’s wrong. But it’s hard to argue that it’s right for the currently uninsured but wrong for people whose plans were canceled.
7. Put more simply, Republicans will immediately begin calling for the uninsured to get this same exemption. What will the Obama administration say in response? Why are people who plans were canceled more deserving of help than people who couldn’t afford a plan in the first place?
(…)
10. This puts the first crack in the individual mandate. The question is whether it’s the last. If Democratic members of Congress see this as solving their political problem with people whose plans have been canceled, it could help them stand against Republican efforts to delay the individual mandate. But if congressional Democrats use this ruling as an excuse to delay or otherwise de-fang the individual mandate for anyone who doesn’t want to pay for insurance under Obamacare, then it’ll be a very big problem for the law.
There are provisions in the PPACA that permit the President, acting through the HHS Secretary to create exemptions based on “hardship,” but it’s unclear that that the circumstances at play here — people who have lost their health insurance because of the PPACA’s minimum coverage rules — is anything close to what Congress had in mind when it created the “hardship rule. Indeed, it seems clear from the language in the statute that the exemption for “hardship” is meant to be something that people who having to making application for eligibility based on individual circumstances, not something that applies to a large group of people because of the requirements of the law. In that respect, Seth Chandler wonders what Obamacare defenders will think about all this, especially as it applies to broader principles like the Rule of Law:
I look forward to hearing from others, and in particular from people with a commitment to the rule of law who previously have supported the ideas behind the ACA, but it is not clear to me that any of the pre-existing bases contained in this regulation for claiming a hardship exemption would apply to having a predicted cancellation in one’s individual insurance policy. Maybe at this late hour there are arguments and other documents I am not considering. Surely, however, the existence of the ACA itself can not be the human-caused event creating the hardship. Moreover, I have trouble seeing how the cancellation of a plan makes it more difficult for these individuals — as opposed to others in similar circumstances — from obtaining coverage under a qualified health plan. I can well imagine cynics saying that the only real hardship involved here is having believed President Obama when he said that if you liked your health plan you could keep it and thus not having saved up for the higher prices that often exist in policies with “Essential Health Benefits.” Of course, if , as the Obama administration has claimed, many of these cancelled policies were junk that the policyholder should be glad to be rid of, it becomes yet more challenging to see much of a hardship at all in being offered real insurance coverage with all of its greater benefits.
In any event, it does not take a fertile imagination to foresee legal challenges to this limited exemption from those not fortunate enough to have had health insurance in the past but who are not being given a similar exemption from the individual mandate. I can easily see challenges based on failures of administrative procedure and equal protection.
And Dave Schuler reminds us of an old Supreme Court case:
In Kendall v. United States (1838), the court said:
To contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.
There are limits to executive discretion, the Obama Administration is stretching them, and the likelihood that the Administration’s seat-of-the-pants approach to governance will be tested in the courts seems to grow with every passing day.
This isn’t the first time that the Administration has used the delay strategy to paper over issues with the PPACA in recent years, of course. Through various administrative means, they have provided exemptions to large employers, unions, and several states in response to lobbying and complaints from those group. They have delayed the enforcement of the employer mandate by at least a year based on complaints from business regarding the administrative difficulties of compliance. They have delayed similar requirements for small businesses until after the 2014 midterms. Just about a month ago, they created a special exemption that would allow people who had lost their policies to keep those policies for an additional year assuming that insurance companies and state insurance regulators were willing to allow it. Now, they’ve made use of a “hardship” exemption to the law’s requirement to exempt at the very least hundred of thousands of people from the laws requirements..And they’ve done this as the clock ticks down to Monday when people must purchase insurance if they want to have insurance effective on January 1st. Looked at from the outside, it all creates the impression that they are continually kicking the can down the road because they are noticing that the law and the system it is supposedly creating aren’t at all close enough to being ready for prime time. Already, for example, supporters of the law are openly worrying that the story of January will be the number of people who suddenly discover that they don’t really have insurance because the insurance companies didn’t get the data that they needed from the Federal and State exchanges in order to properly create policies.
Beyond the logistical problems, though, there are also the issues that Chandler and Schuler raise in their posts. Innumerable times now, the Executive Branch has used its administrative rule-making powers to create workarounds to the specific requirements of a law that was duly passed by both Houses of Congress and signed into law by the President. This isn’t how the system is supposed to work, of course. If there are problems with the law, then the proper procedure is or the President to request that Congress reopen debate on the law to try to fix it. Politically, of course, this would be difficult for the Administration because it would give the GOP exactly what it wants, and what it spent the summer and the time leading up to the October shutdown trying to obtain, the chance to make major substantive changes to the PPACA if not fundamentally alter it altogether. The fact that it would be difficult, though, is not an excuse ignore the Rule of Law, though, and anyone who cares about those principles ought to be profoundly disturbed when a President decides to rewrite legislation in a manner that the representatives of the people in Congress cannot participate in.
One reporter today said that he had found the section of the law that gives SecHHS full authority to adjust deadlines and penalties. So, the law is pretty much what Ms. Kathy says it is. Of course, it’s still a bad sign to change the deal on such a late date.
I don’t think that advocates of the PPACA should be particularly happy about the degree of executive discretion that the law apparently requires. The power to delay is the power to destroy and, if a president can postpone the implementation of this or that aspect for logistical reasons today, a future president could postpone its implementation for ideological reasons.
I think it’s increasingly likely that House Republicans will move to sue the administration over this. There will probably be members who will want to have the Judiciary Committee take this up. Frankly, to many Republicans it’s the next best thing to impeachment proceedings – if the GOP takes over the Senate, the probability increases.
KRAUTHAMMER is right when he calls this guy “LAWLESS”
In all honesty…Ya gotta ask…Can we really make it to 2016?
The system is supposed to work differently. In a not-broken government the law would have been amended many times to iron out the kinks. With the opposing party in charge of the House, there would have been trade-offs where some elements of the ACA would have changed to reflect Republican priorities in exchange.
With total opposition from the Republicans in the House (and Senate) there was no way to solve the problems a newly passed big law always has. So Obama is forced to use executive orders to salvage the project.
This is bad for the rule of law, but Republicans share much of the blame here.
It’s long been held that administrations have latitude in order to smooth the implementation of laws.
This is just more ODS from well-established ODS’ers.
A few weeks ago it was the end of the world that people were losing their insurance.
Now it’s the end of the world that the administration has the gall to actually do something about it.
Before that the ODS’ers wanted high deductible plans.
Then they started whining because Obamacare actually provided for high deductible coverage.
Blah blah blah whine blah blah whine.
Dunno whether we should be happy or not but legally the excutive can do it-which is why you don’t see any lawsuits challenging these delays or Congressional calls to action re these delays.
Frankly, I’m torn. The technocrat in me says that the Administration should simply have responded by urging people to go to the exchanges and sign up for a new plan, FFS.But Democratic messaging on the issue is as usual terrible and the Democrats have gone into their usual defensive cringe, so the Administration felt it necessary to do something stupid.
My guess is that only a few people are going to even bother to sign up for these “non-insurance” insurance plans, because why bother when they can sign up for a better subsidized plan.
I also know that as sure as shooting, some blue haired middle-aged white lady is going to sign up for one of these “bare bones” plans, then is going to have an accident , or be diagnosed for cancer, find out that their plan covers f%3k all,and then go on the airwaves crying because she signed up for an “Obamacare” plan and she is now out of pocket for everything. Of course Republicans are then going to blame Obama. “Where is the gauranteed coverage, Mr. President?” And the media will dutifully go along with it.
And because Doug doesn’t want to post on anything good about the ACA, let me help by posting this:
And that insurance death spiral you have been hearing about? Ain’t gonna happen:
This won’t make a lick of difference in the long run. Perhaps the administration believes it’s enough the cancelled policyholder is punished enough by her lack of insurance and a penalty now just adds injury to injury?
@stonetools: Health insurance through the fed exchange without any subsidy for my wife and me is about $600 less than it was for me alone with a crappy HSA with preexisting condition exlusions.
That’s $7,200 in my pocket to insure two at the platinum level. Thank you, Mr. President.
You know, this all depends on the IRS going along with all these “modifications” of the law. The very same IRS that just a few months ago, Obama, et al, were arguing had gone rogue and they had no control over.
So it really depends on how those tax returns are processed as to whether the mandate is waived or not.
Nah, no reason to be concerned about Obama going around Congress. President Cruz will sort it all out with some executive fiat of his own. It’ll be fun.
We can keep moving toward challenging the legitimacy of government. Even if you subscribe that our forefathers signed us all up for the Constitution, they didn’t sign us up for executive fiat. So really, the US government as currently being operated is illegitimate. It’ll be a fun and lively debate.
I suppose that some Republican can sue for the reimposition of the individual mandate and its associated tax/fine. That will go over well with their constituencies.
Only someone completely and totally delusional could ever conceive a “President Cruz”, meanwhile, there is plenty of illegitimacy in government to go around, starting with the Teabaggers in Congress…
You mean those individuals elected according to the procedures outlined in the Constitution? The ones using the procedures and processes of the US Congress set forth as authorized by the US Constitution? Those illegitimates?
Oh, for Christ’s sake, People. The law means whatever the president says it means at that particular time. It’s in Amendment XXXI. And if you don’t like that, you’re racist.
So these insurance companies need to offer insurance plans that are explicitly illegal under the law, and people who buy them won’t be breaking the law by having substandard insurance. Because Obama Has Spoken.
Deal with it.
“Administration Creates Yet Another Partial Delay Of Obamacare Provision, Rule Of Law Suffers”
Terrific, now you tell us. A little over a year ago, far left blogs like OTB did their best to foist this empty suit community organizer masquerading as a President on the rest of us unsuspecting rubes for 4 more years. Now we come to find out, 5 years too late, that he was perpetrating a scam all the while – perhaps the biggest Gov’t scam in US history with the Not So Affordable Care scam. Obama should be happy he isn’t ea regulat Joe right about now, otherwise he would likely be sharing a cell with that perp Madoff for the hoax he perpetrated on the American people. ” YOU CAN KEEP YOUR PLAN” my azzzzzz.
Yes, those illegitimates who don’t want to pay the country’s bills, those illegitimates who want the country to go into default, those illegitimates who shut down the government and act like petulant children while doing so…yes, those illegitimates…
Oh look who crawled out from under his slimy rock…with all that vitriol, you would think he would provide us with another failed prediction to go with the numerous ones he has already spouted out of his “azzzzzz”…
“Oh look who crawled out from under his slimy rock…with all that vitriol, you would think he would provide us with another failed prediction to go with the numerous ones he has already spouted out of his “azzzzzz”… ”
Blah Blah Blah. My “prediction” was a good faith effort base on my feelings and sentiments at the time. Little did I know (Little did the counrty know) that Obama was perpetrating a scam and hiding it from the electorate during the run up to the vote. If he would have told voters that this ObamaCare was a redistribution ruse based on a YOU CAN KEEP YOUR PLAN hoax, I doubt he would have been re-elected. If people would have known the truth and the scam he was perpetrating and waiting to unveil to the country in 2013, Romney would have won comfortably as Obama’s 37 current Approval in IA & 34% in OH suggest. Presidents LOSE BADLY with 30% approval ratings in bell wethers such as OH & IA.
That’s OK – You far left cranks foisted this fraud on the rest of us and look where he has led us – The virtual implosion of our health care industry based on a LIE. Those old adages are never more apt than right now: YOU GET WHAT YOU PAID FOR and YOU REAP WHAT YOU SOW. At the same time, he’s poisoned the well so much that Hillary’s ratings for 2016 are imploding. LMAO.
17,000 people a day signing up in California. 4,000 a day in Kentucky. Similar numbers in other states.
With the worst product roll-out since New Coke, people are signing up.
With an endless stream of Fox/Republican lies and scare tactics, people are signing up.
With a really pathetic sales job by Democrats, people are signing up.
With polls looking pretty weak for Obama, people are signing up.
You think they’re signing up because the rates are astronomical, and the policies are horrible, and they don’t need insurance anyway, and they want to be enslaved by the evil of Big Government?
Or do you think they’re signing up, despite all the obstacles, because this was a needed program?
As much as my side fu**ed this up, we’re still winning. Wow. Kind of amazing. What do we have to do, spot the GOP two touchdowns and a field goal? And why are we winning? Same reason we won on Social Security, Medicare, Medicaid, Civil Rights, women’s equality and gay marriage: we’re right, they’re wrong. We’re the future, they’re the past.
@Smooth Jazz:
You need more angry all-caps phrases. It makes you seem so helpless, somehow. And I savor your political impotence.
Mmmm. Smells like panic and desperation.
@JKB:
Well then, you have nothing to worry about, because it’ll go to the Supremes. Right?
By the way, gays are getting married in Utah. Right now. Utah!
@Smooth Jazz:
And even if what you say is true, Obamacare is still the best alternative out there. That should be quite embarrassing for the GOP and their sycophants.
And no, there is no rule of law issue with this provision, so we’re entering the boy who cried wolf territory here. Same with the GOP calls to delay the mandate for everyone.
The Democrats created this mess for themselves when they chose to avoid substantive GOP input while ignoring popular opinion and circumventing the will of the voters — Massachusetts 2010 — by hamfisting this sloppy law through congress. Apparently, Dems really believed their untested and inexperienced speechmaker-in-chief could make it all right.
Single-party legislation doesn’t always work out very well, does it?
@rightklik: Apparently, the sole requirement to be a Republican is a memory like a goldfish.
@Wr:
Oh, that’s unfair. Bad memory is not enough. You need spite and self-pity, too.
Exactly. But they don’t call the GOP the “stupid party” for nothin’. When will the Rethuglicans learn that the only way to avoid rule by executive fiat is to give the president everything he wants, voters be damned?
If Obama fails to mis-manage this start-up by refusing to do logical fixes simply because that “stretches the rules”, I’m OK with it. Rejecting common sense for anal-retentive adherence to legal sophistry isn’t my idea of a viable system of government.
rightklik:
Yet another exceptionally popular right-wing lie. Link:
Also: pdf.
David M:
Exactly. As I have said, the GOP cannot present a GOP alternative to Obamacare because Obamacare itself is the GOP alternative. In 2007 DeMint described Romneycare as “something that I think we should do for the whole country.”
So does this mean the GOL wasn’t actually a bunch of terrorists now that Obama has delayed this stuff? Maybe Obama should apologize-but that would mean admitting he made a mistake.
I’m looking for a silver lining here, and I think I found one: a future Republican president can cite this as precedent to do things like delay tax hikes, new taxes, and whatnot. Just say that the tax poses an undue burden on those who would pay it, and say that the law will be enforced at some vague future date.
Or a gun ban. Just say it won’t be enforced at this time.
that he did it is not surprising, nor that he did it while most of us are occupied with holiday stuff. it was a disaster from the get go, a lot of people knew it but it took senate dems to actually make obama cave in on himself. one thing that gets lost in all of this back & forth bs is that back in the day he was saying there were over 10 million people who would be helped by obamacare (maybe even 40 mil), now they’d be happy to have 1 million sign up- so was it all worth it (financially/politically)?
You know, I don’t recall this much freaking out when people received ADA waivers on construction projects. Weird.
@Wr:
Actually, it’s to have an IQ like a goldfish
His Majesty Obama should be reminded of the Magna Carta and the U.S. Constitution wherein the “king” is also bound by the rule of law and cannot rule by royal decree.
I have some actual silver linings.
Hat tip Richard Mayhew at Balloon Juice:
So nearly four million people have health insurance now that they didn’t have on October 1. Good news for everyone except Doug and other conservative posters here. What kind of people root against poor and working class people getting health insurance?
To paraphrase Josh Barro, there really are two Americas-and one of them is better.
“So nearly four million people have health insurance now that they didn’t have on October 1. Good news for everyone except Doug and other conservative posters here. What kind of people root against poor and working class people getting health insurance?”
Man, you far left cranks are desperate. First off, you conflate “Obama administration says nearly 3.9 million people have qualified for coverage through the health care law’s Medicaid expansion” with your absurd spin that “So nearly four million people have health insurance now that they didn’t have on October 1”. Yet fail to mention that the vast majority of the “almost 4M” is Medicaid signups, which WE THE PEOPLE pay for. Besides, I wouldn’t believe what I hear from the ‘YOU CAN KEEP YOUR PLAN CROWD” unless it can be verified.
What kind of people root against poor and working class people getting health insurance? I don’t know too many people who would root against poor people, but there is no “free lunch”. The money has to come from somewhere. Obama and the Dems have perpetrated a scam that is so monumentous, it may take a generation or more for Liberals to recover from this.That’s what you far left cranks get for hiving up this empty suit who never ran anything in his life on the rest of us. Tens of millions of our citizens are going to face massive disruption and anxiety in their lives because this community organizer was able to bamboozle a pliant press & sycophatic MSM with hollow speeches.
A tragedy of epic proportions is unfolding right in front of us as our health care ecosystem implodes because of the whim of this ameteur who supposedly gave good speeches and had no other Mgnt skill to speak of. God help us all.
All caps doesn’t change anything, The larger pool, preventative care and preexisting condition exclusion bans change everything.
Starting next month “everything” becomes money. I save about $600/mo for better coverage and my wife gets covered too. This is without any subsidies. Get with it, man.
That takes nothing away from the fact that many people who previously had no health insurance now have access to health care other than simply going to the emergency room…
Oh really? Check out jackasses like Jack Kingston…
If you are so upset over “free lunches” why aren’t you also railing against farm subsidies and other largesse directed at plenty of people who don’t need any of that…largesse also provided by WE THE PEOPLE…
Indeed we do. So what? The facts are that uninsured people now have health insurance. That’s a good thing. Why are you against this, seeing that Congress has in fact voted for this? Would you prefer this money go into boondoggles like the F-35?Well, if you do , then win some elections and we can divert your dollars to your wishes.
LOLwhut?
Stop hyperventilating and let some oxygen get to your brain, please.”Momentous” , “epic?” . Save that stuff for events like the Holocaust and 9/11, please. Next you’ll be repeating Reagan’s nonsense that if that you enact Medicare, “We are going to spend our sunset years telling our children and our children’s children, what it once was like in America when men were free.”
Chew on this fact, Mr SJ. Countries have been enacting universal health insurance since Otto von Bismarck did in 1889.Every other civilized country has done it-and guess what, no country’s health care system has “imploded”. All that happens is that they get health care for everyone, at half the cost that we pay.
Also, this “ameteur ” managed to beat your corporate superhero, which is the best you guys could come up with you. What does that make you?
@An Interested Party:
It’s not a “free lunch” if it’s a tax subsidy for oil billionaires or corporate farmers, apparently.
@stonetools: 3.9 million now have insurance. 5.9 million lost their insurance. Need help with the arithmetic?
@John425:
My arithmetic is fine, the problem is your grasp of English. What has. Happened is that some folks have had. Their insurance plans cancelled. They haven’t “lost their insurance” – anymore than they did last year when a bunch of other people had their plans cancelled. The people now can find new plans on insuranceb exchanges and the government willhelp them pay for them- and there will be better plans.
@John425:
memories…
@Stonetools: your grammar has gone to hell too…………
@bill:
Blame it on iPad autocorrect