President Barack Obama says he can “fix” the millions of canceled health insurance plans with an administrative change. He’s claiming more executive power — power for himself — than the Constitution allows and playing fast and loose with the truth.
The culprit behind the cancellations is not administrative regulation, as Obama asserts; it’s Section 2702 of the Affordable Care Act, which states that all plans sold in the individual market or small group market from Jan. 1, 2014 and onward must include the Essential Health Benefits package —- 10 categories of health coverage Washington “experts” deem essential, such as maternity care, even if you’re 50 years old. Plans are being canceled because they don’t fulfill all 10.
Only Congress can dispense with the deadline, so on Friday, the House made a legal attempt to halt the mass cancellations by passing a bill. But insurers and insurance commissioners in several states have said the “fix” is too late to retool by Jan. 1.
Amazingly, our arrogant president says he will veto that bill if it reaches his desk because it would allow insurers to sell the noncompliant policies to new customers as well as old ones. Though the real reason is that Obama wants to rule by edict.
This particular edict could place taxpayers on the hook. The American Academy of Actuaries warned that the fix is likely to cause healthy people to stick with their old plans, leaving the sickest in the new exchanges. That will clobber exchange insurers. Section 1342 of the law set up a mechanism to bail out insurers incurring losses, but it’s funded by fees on insurers and employers. The actuaries predicted the pot of money might not be enough. “Costs to the federal government could increase,” the group cautioned. But the actuaries got it wrong when they said “costs to the federal government.” The federal government has no money. It’s our money.
Obama time and again brushes off critics of the health law by saying Obamacare is “the law of the land,” except when he wants to patch it up himself. “The Affordable Care Act is a law that passed the House; it passed the Senate. The Supreme Court ruled it constitutional. It was the central issue in last year’s election. It is settled, and it is here to stay,” he declared to his Republican opponents at an event hailing the law’s implementation.
You could make that claim about the Affordable Care Act but not about Obamacare. The program the president is trying to roll out is a mangled, distorted version of the law.
Gone is the employer mandate (likely never to return), caps on out-of-pocket expenses, income verification (replaced by a limp substitute) and nearly half the deadlines in the statute, according to the Congressional Research Service. Then there are the additions: 1,472 waivers and a special deal weaseled for members of Congress to have their Obamacare health plans subsidized by taxpayers.
On Aug. 9, the president was asked where he gets the authority to make these changes. He replied: “In a normal political environment, it would have been easier for me to simply call up the speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law … let’s make a technical change to the law. That would be the normal thing that I would prefer to do.”
He’s suggesting these are not “normal” time just because Republicans control the House. Sorry, Mr. President, but divided government — with an uncooperative Congress — is the norm.
Don’t be shocked if an independent-minded insurer sues to stop Obama’s most recent fix. Insurers have invested hundreds of millions of dollars creating and marketing health plans to conform to Obamacare.
Lower federal courts are already smacking down the president for his footloose way with the law. Though the Affordable Care Act says only state exchanges can provide subsidies to health plan enrollees, the Obama administration is trying to offer subsidies in all 50 states, rather than just in the 14 that set up exchanges. It has tried to get these lawsuits dismissed, but so far has failed twice.
This isn’t just about Obamacare. On Aug. 13, the District of Columbia Circuit Court of Appeals ruled against the president for failing to obey a 2002 statute requiring the executive branch to take final action on the certification of Yucca Mountain in Nevada as a nuclear waste site. Judge Brett Kavanaugh ruled that “Under Article Two of the Constitution and relevant Supreme Court precedents, the president must follow statutory mandates.”
In our country, the rule of law is king, not Mr. Obama.
Betsy McCaughey is a former lieutenant governor of New York and the author of Beating Obamacare: Your Handbook for the New Healthcare Law.