Barack Obama: Violating the law when he changes ObamaCare?

Tom Jackson
Feb 14, 2014

 

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.

 

 

Comments

samiam

The Man Who Would Be King...would be the perfect title for movie on Obama if it weren't already used.

Typical government situation...everyone complains but nobody does anything about it.

YoMamma

Tom this must have been one of the most painful articles for you. Your President who is above the constitution actually breaking the law. Or maybe he will just change them to make it legal. After all he has a pen!

Darwin's choice

If the media would do there job the politicians could not push things like they do.But they are willing accomplices.

Truth2u

Darwin’s post hits the heart of our nations problem. Where has the press been on this, and the question extends to the Register. Over the last six years there has been little or no reporting of Obama's lies and Constitutional transgressions until now, It’s not like this form of belief, behavior, lies and Socialist dictates just started! Over the last 6 years many forum posters have mentioned these traitorous acts only to be treated with intolerance by posters along with administrators.

The liberal press as a whole refuses to report anything negative about liberal leaders in office until the near end of their final term. This calculated control allows easy sailing for their political choice for the majority of their term, then in the later part they turn just a little bit so the public is conditioned into thinking that the press is and always has been fair, ignoring that they have been silent for the previous six or seven years. During this honeymoon time they headline sex related stories, and if there aren't any sex offender stories locally print the ones from other states or countries; does this sound familiar?
Again, where has the Register been all these last six years?

Contango

Re: "The liberal press,"

Old Soviet joke regarding the two major newspapers in the USSR, Pravda (Truth) & Izvestia (News):

"In Pravda there is no news, and in Izvestia there is no truth."

Soviets that wanted news and truth had to tune to the "Voice of America" (VOA). Fox? :)

Darwin's choice

http://therightscoop.com/liberal...

"The left is silent on obamas lawlessness because of cult of personality"

Good song!

The Hero Zone's picture
The Hero Zone

Sadly it is a case of "catch me if you can" many times. But I can't help but wonder if an organization like the National Retail Federation couldn't file for standing because the continued illegal modifications to the law end up wasting the time, money, and manpower of companies who had tried to comply with the law but now don't have to for another two years. The economic "damages" are already incurred and all that work has gone to waste in trying to make plans for something that is never the same.

http://youtu.be/a3IWq3CXHyc
"You know, I taught Constitutional law for ten years. I take the Constitution very seriously, the biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America." - Then-candidate Barack Obama, 2008 at a town hall in Lancaster, PA.

Contango

Our founders designed a 'nation of laws,' in contrast to Europe which was a 'nation of men.'

Long-term decision making is difficult for business and individuals, when rule changes are done on the political whim of the governing bodies and entities (nation of men).

We are in essence playing a game of "21," and suddenly the govt. says: No, the game is now "25."

How can a business or individual make long-term financial plans with this kind of insanity?

FORWARD SOVIET!

Contango

Related:

"US issues 'cannabis cash' guidelines to banks"

"The new guidance from the justice department and the Financial Crimes Enforcement Network (FinCEN), an office of the treasury department,"

http://www.bbc.co.uk/news/world-...

Fed law makes the sale of cannabis illegal.

The Obama admin. is once again ignoring the rules.

There you go again

What? No trash talk from Big Dog? I enjoy reading opinions from both sides of the political spectrum but when I get to the nasty comments....I just skip them. It's not worth the time.

Truth2u

You enjoy complete refusal to admit facts? I'm enjoying not seeing the piles of you know what that Dog leaves behind with his posts. His constant excuses for his 'pup' which is ripping and tearing up our house and then telling us to ignore it and step over it gets really old.

Contango

"The Only Obamacare Number That Matters":

"What matters now is how to persuade more young people, especially young men, to sign up for health insurance before March 31."

http://www.bloomberg.com/news/20...

Good to see that the progressive-socialists FINALLY had to tell the truth and tell Millenials that the Obam☭are scheme intended to pick their pockets and use them as funding slaves.

Imagine how successful that other cross-generational theft scheme of Soc. Security would be if the fines against participating were so low?

Contango

The Obama admin. is losing the game, so they're 'changing the rules' and arbitrarily putting more mins. on the time clock.

Score:

Employer mandate - 2

Individual mandate – 0

Forcing the individual to sign up, but letting employers slide TWICE - yea, that seems fair.

Tell me again how Pres. Obama is for the “folks.”

The Hero Zone's picture
The Hero Zone

To be fair for the individuals wasn't the proposal to let you keep your old insurance but then couldn't? In addition didn't our President instruct these companies to then violate federal law by reoffering those same anti-compliant plans to those his first individual violation left hanging?

Babo

Wouldn't one of the poor schmuck individuals or small self employed business owners who are forced to now buy health care but do not want to buy due to cost have standing to sue on the basis of equal protection? The law was passed with the understanding that big and medium businesses would have to comply but they've been given a pass.
Haven't individuals and small business owners been damaged because the costs are not being spread out over larger employers such as Wal Mart and they have lost coverage that met their needs?

The Hero Zone's picture
The Hero Zone

While I am not a fan of the majority of the ACA and especially how it was passed (and now ceaselessly meddled with), the equal protection you refer to is a double-edged sword and in my opinion has recently been abused outside its original intent. It shouldn't be a catch-all excuse for someone to want to inflict something on another person or entity, especially state to state.

Babo

I was advocating using it to strike down ACA as unconstitutional based on President Obama's unequal application of the law against different classes of people who are similarly situated. Small business owners, the self employed and people who are employed by small business (the biggest job creators in the country) are unfairly saddled with the costs of this law while everyone else who is employed by medium and large businesses has received an excuse to avoid complying.

I believe there is standing by small business owners to have this law stricken or to force President Obama to rescind his extensions to large and medium business compliance with the mandates.

Personally, I wish they'd eliminate all private insurance and go to a one payor system with everybody having the same coverage including Congress. Fund it like Medicare with a mandatory tax and eliminate the middlemen's huge profits on health care.

The Hero Zone's picture
The Hero Zone

I understand your frustration, but asking for MORE government intervention in your life through a single payer system will lead to even more ceaseless meddling and frustration than we are seeing with this law. Do you want to have to beg your Federal government for your life? To compete with millions of others for the ear of a Representative or Senator who may never listen to you or who believes in something fundamentally different than yourself?

I'd be more open to the idea you propose if that system actually worked. But meanwhile Canadians are still coming to our hospitals for procedures and England (often cited as a the poster child for nationalized care) has abundant problems and is only a fraction the geographic size and diversity of population that we are in the U.S.

Babo

The Medicare system works just fine in this country. Extend it to all Americans. You have no idea of the billing nightmare that exists with the variety of plans and insurers out there. Moreover, in many cases insurance companies make more money to process a claim than the providers who actually render the services after their overheard is paid.

The Canadians and others who are coming here are willing to pay for elective services because they do not want to wait their turn. We can have a basic system of health care in this country that protects everyone and for those who want more, they can pay for it.

In any event, the issue is the unequal treatment of the hard working owners and employees of small businesses in this country AGAIN, to placate the big money interests of business. Either everybody gets an extension or nobody should get one.

The Hero Zone's picture
The Hero Zone

We are in agreement over the ACA for sure (it's quite unfair that by it our tax dollars subsidize profit directly instead of the companies needing to go out and earn it...I wonder how many who voted for it have health insurers as a portion of their portfolio?), but I think having government as the middle man is just as wasteful and creates a layer of bureaucracy that is unnecessary. Especially when we get to the point of: who decides how much a doctor, office, or hospital should be allowed to make if not those in the business themselves? I don't think I can count on one hand where government has been more efficient, responsive, or accountable than private business.

What if I successfully sue a nationalized doctor for malpractice? Will the taxpayers be giving me millions of dollars in damages? Or would I need to actually sue the Federal government/bureaucracy? How will nationalizing health care incentivize the industry for people to want to learn medicine or research if they can never be any better in income or position than the government allows?

Not implying you said it was, but we need to remember that health care isn't a right. Just as well profit isn't a bad word.

How about this as a counter-proposition (since we're having a great conversation that I much appreciate, Babo):

Take those same taxes collected currently or with your proposed increase and instead set up HSAs or some similar personal account with the citizens who can then shop for their own healthcare? This puts competition and price for service knowledge back into the system and citizenry as well as allows for doctors, hospitals, and medical researchers to continue their private careers (and accountability) while fighting each other for your dollar instead of us fighting our government?

Tom Jackson had a great blog post about this not too long ago: http://www.sanduskyregister.com/...

Instead of doing the same, ineffective, and outdated thing that other countries are doing why don't we get creative, innovative, and a solution that is right for a country of our size and vastly more varied geography and population? Specifically from the blog above:

http://www.forbes.com/sites/thea...

EDIT: This would also be worth reading and can be found to the side of the other link. It talks about the Swiss system.

http://www.forbes.com/sites/thea...

Babo

Hey sorry, I got distracted and didn't get back to you.

We agree on the ACA. It should be struck down. Your point about how many Congressman have health related companies in their portfolio's is a good point. My guess is all of them have substantial investments in insurance companies, pharmaceutical companies.

We disagree on the government as the middleman. The Medicare system is more efficient than for profit health insurance providers. Of course my argument is only if one has a system based on national health insurance mandates for all. You need to remember that Government also funds Medicaid and all of that would come under one system with one standard of level of cervices for everyone. There would be enormous cost savings in bidding out contracts for drugs for example.

The Government and Insurance companies already determine how much a provider is to be paid for services. Providers have no say in payment other than to refuse to accept a particular plan and they have to pay out significant amounts in their practices for billing.

It's one reason you're seeing the elimination of independent medical providers. Insurance companies and government have an exception from antitrust to determine price while providers are not allowed to band together to set prices for their services. However, a provider can forgo accepting insurance altogether and practice concierage type medicine. One pays a doctor a retainer and is guaranteed a high level of attention. Doctors who go to this type of practice report they are able to eliminate much of their overhead spent on billing and enjoy greater work satisfaction.

I am not advocating nationalizing the employment of medical providers but going to a single pay system for services for base level coverage like Medicare for the elderly extended to all persons. The medical professional is still professionally liable as they are now to medicare patients for any malpractice.

Also your point about incentivizing people to learn medicine or conduct research is not well taken. A single payer system would actually increase income to primary care doctors and providers and still encourage professional achievement either as a clinician or researcher for a number of reasons.

First, a single payer system would apply to basic healthcare including wellness care instead of covering everything. Patients would still have to contribute a percentage to discourage overuse of certain services or could purchase add on policies much like Medicare today.

Second, doctors and other providers would be free to charge more for services that are not considered essential or elective and they can compete on the level of deductible. Some may accept payment in full from the payer, while others may say I need more because I'm a better clinician and deserve more.

Third, medical research is almost exclusively funded by the Federal Government through the NIH in universities or by Big Pharma. There would be no change in opportunities for research.

I happen to feel access to basic health care is a right just as access to food and shelter is a right. We still ensure grocers and land lords earn a profit through food stamps and rent support programs and there would be no reason to deny health providers profits from their labors. I just don't think they should have to share their profits with for profit health insurers who provide nothing in the way of additional benefits to patients.

I like your idea of HSA's provided everyone (businesses and individuals) are taxed to support them; nobody can have tax exempt insurance as part of their compensation; and the Medicaid/welfare system is rolled into it. I would also add taxes to products that contribute to health problems so that producers and users of these products pay for the increased health costs. (tobacco, alcohol, sugary products, soda, fast food, high fat etc.)

I've not had time to read the links but will read them.

I enjoy the dialogue.

Contango

Re: "The Medicare system is more efficient than for profit health insurance providers."

Again:

If a for-profit entity lost an estimated $60-100 billion annually through waste, fraud and abuse like Medicare & Medicaid, they'd be bankrupt in no time and the officers on trial for malfeasance.

BTW: A high deductible health plan (HDHP) & an HSA has worked for my family for several yrs.

Babo

Hey we disagree. For profit health insurers charge far more to process claims than the government and that add on expense far exceeds fraud and abuse in Medicare. One system would standardize rates, allow for competitive bidding of services and products. It would also be much easier to police.

Finally, Wall Street Banks and Insurance Companies lost trillions through fraud, waste, and abuse and received bailouts not bankruptcy!
Don't even get me started on the billions lost through fraud, abuse and waste to Big Pharma and the opiate addictions they created.

Contango

Re: "For profit health insurers charge far more to process claims than the government and that add on expense far exceeds fraud and abuse in Medicare."

Makes no sense.

Private ins. practice managed care: They work to make sure that claims are legit before payment.

Medicare and Medicaid pay first and then track down the wrongly paid claims: Pay and chase.

The cost of living differs across the country - "standard rates" not possible.

So you'd pay the same in MS as NY?

Show me a health care co. that received a Fed bailout.

Babo

How do you think Insurance companies make a profit? That overhead and profit taken at the expense of providers also exceeds fraud, waste and abuse in Medicare and Medicaid or nobody would invest in the stock.

Medicare and every insurance provider practices managed care anymore and there are still ways to beat the system if so inclined. All providers pay the claim and then audit later for routine procedures. While other services require pre authorization.

The rates set by Medicare are based on regional differences as are payments by for profit insurance companies.

Finally you missed the point about federal bailouts. There was and always will be massive fraud in for profit companies and Wall Street, whether insurance companies (AIG) Banks etc but the companies are bailed out not forced into bankruptcy for their bad business decisions let alone prosecuted for their criminal acts.

Also what would you call the ACA but a bailout/subsidy to private health insurance companies at the expense of health care providers, small businesses, and their employees as well as the self employed?

jacksonbrowne

It is interesting that one of the reason's Obama was he!! bent on ACA, other than his name attached, is that he said he thinks the profits that health insurance companies were making was crazy. Well guess what, the companies will be making at least that much or maybe even more! It is also, IMO, to limit companies to only use 20% of their profit for overhead when our own gov't could never live up tho that standard.

Contango

Re: "The Medicare system works just fine in this country."

The govt. won't tell you.

But, it's been estimated that Medicare and Medicaid lose between $60-$100B annually through waste, fraud & abuse.

What do you think the revenue loss would be with a single payer?

Besides, single payer has been enacted in countries with small, homogenous populations.

The U.S. has a divergent population of over 300M. For comparison the European Union should be used, not the UK, Canada, et. al.

Babo

And how much do you think is lost through the vast array of insurance plans through fraud, abuse and good old fashion enormous profit taking by Wall Street et al? How much do you think is lost through the employment of people to do nothing but push paperwork, advertise plans etc?

I have no doubt that there would be enormous savings by going to a single payor for basic health care and letting people pay for the extras.

Re: Our divergent population: I wasn't aware that medical practices should differ based on race or ethnicity. In fact there are laws against that activity. When you open a human body up, there are not any significant differences other than male and female.

Contango

Re: "enormous profit taking by Wall Street,"

Such as?

Better research their profit margins.

Private ins. cos. manage care which tends to limit waste, fraud and abuse.

Also, any loss is theirs.

Medicare and Medicaid use a method that's been called: Pay and chase.

Wanna limit waste, fraud and abuse? How many more highly compensated bureaucrats are gonna be needed?

Even Paul Krugman has spoken of the need for “Death panels.”

Does everyone who wants a sex change operation get them? Who decides; the govt.?

--------------

Diversity of pop.? You missed the point.

Diversity in ethnicities, beliefs, et. al. Some might want Santaria or D.O.’s or hypnosis. You OK with paying for that as a taxpayer?

H*ll, if I’m paying for it then I want: Football, boxing, MMA, motorcycles and all kinds of potentially dangerous sports and recreational machinery banned!

IMO, health ins. should be like homeowner’s ins., the govt. should stay the @#$% out of it.

One-size-fits-all centralized planning DOESN'T WORK.

The Soviet Union was the first country in the world to guarantee free health care for every citizen. What happened?

The Big Dog's back

Quick question hz. Who is the buffer between Corporations and the working person?

Contango

Re: "Who is the buffer between Corporations and the working person?"

The competitive market.

Who's the "buffer" between over-reaching onerous govt. and the individual?

Babo

LOL. The free market and competition in health care do not exist as Insurance companies can price fix due exemption from Antitrust statutes.

Contango

Re: "Insurance companies can price fix due exemption from Antitrust statutes."

Rates are the purview of the states, NOT the Feds.

Not-to-worry; single payer will soon be a reality and then everything will be 'fair' right?

The Hero Zone's picture
The Hero Zone

Going with the baited answer of government, I agree that it has a place and point. However, government should NOT be the origin or terminus (or monopolistic toll road) of this kind of service. It is supposed to be an innocuous facilitator and the ultimate arbiter when those two "sides" you mentioned disagree. In my view your intended point is partially correct, but you must also take Contango's answer into the mix.

I shouldn't beg my government for my life and health, I should beg them to intercede when someone else that I entered into a private contract with fails to deliver on their promise or is otherwise unscrupulous. This leaves the government cleaner in the end and resolves the issue between private parties.

The Big Dog's back

Obama is trying to "clean up" the health insurance industry.

The Hero Zone's picture
The Hero Zone

Guaranteeing profits by our tax dollars sure is a step away from what you claim he is trying to do, among others.

SamAdams

No. Nobody has standing. YET. We go back to the "it must have damaged you, and you must be able to prove it" caveat. And since the deadline for individuals to have insurance is in March, nobody has yet been "damaged."

It's my understanding that there are a couple of class action lawsuits ready to go the very moment damages begin to be suffered. But again, that won't happen until somebody somewhere becomes liable for fines or any other penalties for the failure to be insured.

Babo

There's a cause of action called a Declaratory Judgment where one can ask a court to enjoin a law before the actual harm occurs but where the likelihood of harm is imminent. With ACA, one segment of the population is subject to quasi criminal penalties for failure to comply with the law while others have an excuse.

However, I do agree it is better to wait until the harm actually occurs.

Dr. Information

Just more proof that Obama is a dictator and will do whatever he wants to and trample over the laws to get his way. Laws? What laws, I'm president, I will do whatever I want to get my way. Let's see the left bloggers deflect, blame Bush, and lie. Here it comes, 3,2,1....

Contango

Looking forward to the progressive-socialists advocating govt. supported, mandated & guaranteed:

House insurance
Vehicle insurance
Grocery insurance
Job insurance
Retirement insurance
Disability insurance
Clothing insurance
Vacation insurance
Unemployment insurance
Education insurance
Entertainment insurance
Smart phone insurance

And the 'good news' is that's the direction they're intending, see:

"The Second Bill of Rights"

http://en.wikipedia.org/wiki/Sec...

Hang on boys & girls!

FORWARD SOVIET!

Darwin's choice

"It’s a perfect analogy to the spiraling tyranny of centralized mismanagement epitomized by Obamacare and other rogue federal programs under President Obama. Here’s how it goes:

If you don’t bother to pay attention or even vote, you get a liberal in the White House and a bunch of them in Congress. When you get liberals in power, you get bad laws. When you have bad laws, you need penalties to ensure compliance. When you have more penalties, you need more enforcers. When you have more enforcers, you lose your freedom to run your business. When you can’t run your business, you lay off people.

When you lay off people, they go on welfare and food stamps. When they go on welfare and food stamps, they vote for lawmakers who will give them more free stuff. To pay for more free stuff, the government raises taxes and borrows money from China to service the national debt. When China crooks its finger, Uncle Sam crawls to Beijing, asking for mercy. Don’t make Uncle Sam crawl to Beijing asking for mercy."

Read more: http://p.washingtontimes.com/new...
Follow us: @washtimes on Twitter

Contango

"Cloward–Piven strategy":

http://en.wikipedia.org/wiki/Clo...

Overwhelm the system in order to help bring about a socialist revolution.

Darwin's choice

Correct! And here we are....