- The Washington Times - Thursday, November 14, 2013

President Obama turned to prosecutorial discretion yet again Thursday as he tried an end run around Congress, claiming unilateral authority to let companies continue to offer health care plans under Obamacare even if those plans violate his namesake law.

The move drew howls of disapproval from Republicans and ignited a legal debate over whether Mr. Obama has the executive authority he is claiming.


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“Look, this is going to be litigated,” said Rep. Michael C. Burgess, Texas Republican.

The administration said Mr. Obama was tapping his “enforcement discretion” in much the same way he did last year, when he said he had the power to unilaterally halt deportations of young illegal immigrants and instead granted them legal status and work permits.

“HHS will be using its enforcement discretion to allow for this transition,” said an administration official briefing reporters ahead of Mr. Obama’s announcement. “Enforcement discretion can be used generally in transitions, as well as a bridge towards legislation. This is something that has been used, for example, with the deferred action for childhood arrivals policy, pending immigration reform.”

That immigration policy, known by its acronym DACA, has proved controversial as well. Under it, Mr. Obama has determined that young illegal immigrants shouldn’t be deported, even though the law calls for that.


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The president’s claims of executive authority have irked conservatives ever since Mr. Obama took office in 2009, but Republicans said it has been particularly egregious when it comes to the health care law.

Mr. Obama already has unilaterally suspended the employer mandate requiring large companies to prove they are providing insurance coverage for their employees. His administration also ruled that members of Congress who are being pushed into the health care exchanges could continue to have taxpayers pay for most of their premiums, even though most people in the exchanges won’t have that same benefit.

In this latest instance, Mr. Obama was moving to circumvent part of the law that bans health care plans that don’t meet certain standards.

That has led to millions of consumers in the individual market receiving cancellation notices in recent months — and it has caused a major headache for Mr. Obama, who had vowed that those who liked their would be able to keep them.

House Republicans have proposed a bill, which is set for a floor vote Friday, that would overturn Obamacare’s requirements and let insurance companies continue to offer existing plans. Americans who purchase one of those plans would be considered to have met Obamacare’s individual mandate.

That bill had earned support of a growing number of Democrats, and Mr. Obama’s move Thursday was an effort to try to head off an embarrassing no-confidence vote from his own party on the Republicans’ proposal.

“We put a grandfather clause into the law, but it was insufficient,” the president said at a news conference Thursday, explaining his move.

Under the loophole, Mr. Obama will leave it up to state health insurance commissioners to decide which substandard plans still can be offered by insurance companies, and he has pledged that his administration won’t penalize them for offering those plans even though they violate the Affordable Care Act.

The extension will last one year.

Legal scholars have questioned whether Mr. Obama has that sort of broad authority on deportations, and Thursday’s move reignited that debate.

“It is true that the chief executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year — simply to head off actual legislation not to his liking,” Eugene Kontorovich, a professor at Northwestern University School of Law, said in a blog post at Volokh Conspiracy.

“The ‘fix’ amounts to new legislation — but enacted without Congress,” Mr. Kontorovich said. “The president has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail.”

Mr. Obama’s Democratic allies on Capitol Hill, however, said they believe he acted within his power and has done enough to solve the problem.

“There is no need for a legislative fix for this issue,” said Senate Majority Whip Richard J. Durbin, Illinois Democrat.

Republicans, though, counter that even if it’s legal, Mr. Obama’s fix is temporary and he could change it at any time — meaning insurance companies lack the kind of certainty they need to do business.