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Barack Obama: Violating the law when he changes ObamaCare?

Tom Jackson • Feb 14, 2014 at 5:43 PM

The Obama administration has repeatedly modified the deadlines that were supposed to enforce provisions of the Affordable Care Act, e.g. "ObamaCare."

Many of these changes in the law are clearly illegal, says Jonathan H. Adler, a law professor at Case Western Reserve University in Cleveland. He recently posted an article, "Another day, another illegal ObamaCare delay," at The Volokh Conspiracy,  a libertarian-conservative law professor blog that recently moved to the Washington Post's website.

"The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule.  So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit,"  Adler writes.

Ultimately, the problem is that making changes in federal law is Congress' responsibility, not the president's, Adler writes. "The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them."

The courts  would seem to be the place to test Adler's thesis, but the law professor thinks that's not likely. After explaining that Congress is unlikely to reverse any of Obama's rewrites of the law (Democrats control the Senate), Adler adds, "Courts are unlikely to do anything here either, as it is not clear who would have standing to challenge the latest rule.  In order to demonstrate standing, a plaintiff must show that they are directly and personally injured by the government action at issue."

Aside from the policy issues raised by Adler's post (what's to keep a Republican president elected in 2016 from issuing proclamations to abolish parts of ObamaCare?) it's interesting that when the government does something illegal it may be impossible to do anything about it.

For example, the "standing" issue also may be giving a free pass to Gov. John Kasich's allegedly illegal creation of JobsOhio, his job development agency. Sandusky's Dennis Murray Jr. and others are currently before the Ohio Supreme Court, trying to demonstrate that they have standing to challenge the law. Murray tells me it will likely be a few months before the Ohio Supreme Court rules on the case.

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