• Could the delays backfire?

    The latest delay of the like it/keep it fix has again provoked critics of the Affordable Care Act to pillory the Obama administration for bending the law past the breaking point. Bracket for the moment whether the delay will have much of an impact (no, says Adrianna) or whether it’s sensible policy (yes, says Jon Cohn). I want to explore two legal questions. Is the administration’s action unlawful? If so, why might that matter?

    As the administration sees it, the fix is just an exercise of its traditional discretion to decide how, when, and whether to enforce the law against particular offenders. I’m on record raising serious doubts about that justification. The President does have discretion not to enforce the law in discrete cases, but that discretion is limited by the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

    As Zach Price has recently shown, the President exceeds the scope of his enforcement discretion when he publicly commits not to enforce a congressional statute against a large category of offenders. The like it/keep it fix would seem to fit the bill. In practice, the fix invites insurers to violate a statute that prohibits them from continuing to sell non-compliant plans. The “take Care” duty has not traditionally been understood to countenance that sort of thing.

    Why might this matter? It’s not because the like it/keep it fix will be challenged in court. No insurers challenged the first fix, although some probably had standing to do so. I doubt anyone will challenge the second fix either.

    Nor is the administration likely to pay much of a political price for skirting the law. Sure, the fix will reinforce the storyline that an overweening administration is forcing an ill-conceived law down a resistant public’s throat. But most of the damage on that front has already been done. In any event, the administration is probably right that it’s better to have one bad headline than a round of cancellation notices during the midterms.

    The lack of a persuasive legal justification matters most not for the current political battles, but for the future. Because the Constitution doesn’t crisply detail what the “take Care” clause means, the phrase accrues meaning through practice. The Obama administration’s repeated delays of the ACA now stand as precedent for future administrations that would also like to postpone statutes. The more the administration delays the ACA, the firmer that precedent becomes.

    There’s a risk, then, that the delays will transfer to the executive branch considerable power to refashion statutes. That could spell trouble for health-care reform down the line. What if a future president were to postpone portions of the law that were essential to the law’s ongoing success? Or provisions that protected consumers from sharp insurance practices? The recent delays might give him legal cover to do so.

    The worry isn’t confined to health care. The ACA delays stand as potential support for postponing the effective date of any law, whether it’s a tax-reform statute, a new immigration law, or climate-change legislation. But that freewheeling authority to delay substantive law would mark a dramatic shift in the allocation of lawmaking power in our constitutional structure.

    Don’t get me wrong: I have a lot of sympathy for the political bind that the Obama administration is in. Republican antipathy to health-care reform has put extraordinary pressure on the administration to go it alone. Nonetheless, it’s important to acknowledge, as Jack Balkin has, that “[n]ew exertions of executive power crafted to deal with a dysfunctional Congress may serve as justifications for future Presidents to act unilaterally later on.” Going it alone may be expedient, but it’s risky.

    nicholas_bagley

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