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Obama’s health care law waivers are illegal

Tom Jackson • Aug 27, 2014 at 3:12 PM

President Barack Obama’s repeated changes in provisions of the Affordable Care Act are plainly illegal and violate the U.S. Constitution’s separation of powers, U.S. Sen. Rob Portman asserts.

It’s clear changes in the law are supposed to be made by lawmakers in Congress, not presidential decree, the Ohio Republican told reporters in a phone call Thursday.

Writing for the Vokokh Conspiracy, a legal blog hosted by the Washington Post newspaper, Case Western Reserve University professor Jonathan Adler has been arguing that while the health care law does give the Obama administration discretion in certain matters, some of the changes the administration has made violate the law.

In a Feb. 11 blog post, “Another day, another illegal Obamacare delay,” Adler asserted the White House’s delays in a provision requiring companies to buy insurance for their employees, the “employer mandate” clearly is illegal.

“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 wrote.

Portman was asked about the matter two days after yet another change was announced.

The White House said the end-of-March deadline for buying health insurance on healthcare.gov would not apply to people who tried to buy insurance but failed to navigate the website. They would get another two weeks.

“It’s unbelievable to me Congress would pass a law and the administration would choose not to follow it” Portman said.

If the Obama administration wants to make changes in the law, it should ask Congress to make the changes, Portman said.

Ohio’s other senator, Democrat Sherrod Brown, did not answer directly when asked what he thought of the administration’s changes.

During his own conference call with Ohio reporters Wednesday, Brown was asked for his opinion on the waivers and whether he worries a Republican president elected in 2016 might erode Obamacare by making his own changes.

Brown answered the second part of the question, saying he expects the law to be so popular and well-established by 2017, no president would dare change it.

“No Republican president is going to take away benefits from by then tens of millions of Americans,” Brown said.

Asked in a followup what he thinks of Obama’s changes, Brown said: “I have a mixed opinion of all that, but it doesn’t really matter”

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