President Draws Fire for Invoking Executive Authority on Obamacare Fix

Friday, 15 Nov 2013 12:13 PM

By Melanie Batley

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President Barack Obama's "administrative fix" to reverse the tide of health insurance policy cancellations violates the authority of Congress and is outside the scope of his executive authority, critics claim.

The criticism came after the president announced Thursday he would let companies continue to offer insurance plans under Obamacare, even if they do not meet the standards set out in the new healthcare law.

"HHS will be using its enforcement discretion to allow for this transition," said an administration official briefing reporters ahead of the president's announcement, according to The Washington Times.

"Enforcement discretion can be used generally in transitions, as well as a bridge towards legislation. This is something that has been used, for example, with the deferred action for childhood arrivals policy, pending immigration reform."

The move, however, has triggered intense debate about whether Obama has the executive authority he is claiming to make unilateral changes to the healthcare law, the Times reported.

"It is true that the chief executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year — simply to head off actual legislation not to his liking," Eugene Kontorovich, a professor at Northwestern University School of Law, said in a blog posting, according to the Times.

"The 'fix' amounts to new legislation — but enacted without Congress. The president has no constitutional authority to rewrite statues, especially in ways that impose new obligations on people, and that is what the fix seems to entail."

The administration, however, insists that the president is entitled to use his "enforcement discretion" in much the same way he did when he chose to override existing laws and stop deportations of "Dreamers," or young people who entered the U.S. illegally as children.
At the time, House Republicans criticized the president for overstepping his authority in that instance and selectively enforcing the law.

The president has already invoked executive authority to unilaterally defer the Obamacare employer mandate after businesses argued they needed more time to comply with the law.
That decision has since met with a lawsuit by Judicial Watch, which argues it was outside the scope of the president's authority.

Republicans, meanwhile, have put forward a legislative solution to halt the policy cancellations, and the measure is scheduled for a vote on Friday. Their plan would allow existing policies to be grandfathered, while enabling insurance companies to continue to offer existing plans even if they don't meet the standards set out in the new healthcare law.

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