A question via Twitter:
— Lörne (@LornestoToledo) October 21, 2013
Nick Bagley responds by email:
I’d want to kick this around more to be 100%, but my 95% answer is “no.”
It’s actually sort of interesting (at least to big law geeks). The three-month open-enrollment period isn’t statutory; instead, the ACA directs the Secretary to establish an “initial open enrollment” period. Normally she’d have the discretion to tinker with that as necessary. But the statute also requires her to establish that initial period by “not later than July 1, 2012.” Well, she’s blown through that already — and the provision appears to preclude her from rethinking the determination now. For years after 2014, the statute’s quite clear that she’s got discretion to set annual enrollment periods. But that broad discretion exists only “for calendar years after the initial enrollment period.” That reinforces the suggestion that she can’t rethink the open-enrollment period now.
Thus, though the Secretary may use the hardship exemption to delay the impact of the individual mandate penalty as warranted, she may not extend the open enrollment period. That would require an act of Congress.
UPDATE: Upon further review, it seems that the Administration may extend the open enrollment period without congressional action.