- The Washington Times - Sunday, December 29, 2013

Little more than a year ago, the health care conversation was whether a potential President Mitt Romney could use executive powers to halt some or all of Obamacare. Now, it’s President Obama himself who has made extensive use of those powers, leaving the GOP to accuse him and his defenders of hypocrisy.

In the year since his re-election, Mr. Obama has used his administrative chisel to chip away at deadlines and penalties tied to the law’s individual mandate, arguing that he has the power to use his “discretion” to enforce parts and delay others.

Many of those who questioned whether Mr. Romney would have the authority are now defending Mr. Obama, saying he is within his rights because he is using his powers to defend, not pick apart, the Affordable Care Act.

“It’s hypocritical of the left,” said Lanhee J. Chen, a policy adviser for the Romney campaign, noting that Democrats “would have been up in arms if Romney had done the same thing as Obama.”

Mr. Romney, the 2012 Republican presidential nominee, guided state-level health care reform as Massachusetts governor but said Mr. Obama’s nationwide model would not work as intended. He promised voters that if elected, he would issue a waiver on his first day in office granting states the power to opt out of the health care act. He said he then would use the budget process to choke off the law.

Pro-Obama groups accused Mr. Romney of misleading the American public by claiming executive powers that did not exist or could not repeal the health care law.

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Since then, Mr. Obama has been the one carving out provisions. For instance, he said he would use the equivalent of prosecutorial discretion for states to allow substandard insurance policies that were supposed to be outlawed by Obamacare.

Mr. Romney’s critics have become Mr. Obama’s defenders, saying the intent of the two men matters.

“I think there’s just a huge difference between using executive discretion to implement a law properly and using executive discretion to repeal a law,” said Timothy Jost, a health policy analyst at Washington and Lee University School of Law who criticized the Romney plan.

Igor Volsky, managing editor of Think Progress, wrote a pair of blog posts criticizing Mr. Romney during his candidacy for claims that he would let states opt out of Obamacare.

He said in an interview Friday that comparing Mr. Obama’s tweaks to Mr. Romney’s assertion of executive power “does not stand” because Mr. Romney would have flouted the will of Congress when it enacted a law intending to broaden access to health care.

“[Mr. Obama is] using authority that administrations have used in years gone by for all kinds of things,” Mr. Volsky said.

He compared Mr. Obama’s deadline delays to those of the Bush administration, which repeatedly halted the deadline for federal security standards for state driver’s licenses under the Real ID Act.

House Republicans have accused Mr. Obama of abusing his power by finding unilateral solutions to the law’s problems, often on the cusp of major holidays.

Mr. Chen attributed Mr. Obama’s moves to “the fact he realized the law isn’t working” as the administration intended.

In July, the White House delayed for one year a mandate requiring large employers to provide health care coverage. Then, it said no one would be penalized for lacking health insurance if they attempted to sign up for coverage by March 31, a six-week reprieve from the original deadline of Feb. 15.

Most recently, Mr. Obama pushed back the deadline to sign up for coverage and have it by New Year’s Day and asked insurers to go easy on consumers for their first premium payments.

Republicans who insist on repealing Obamacare say the moves are proof that the law is unworkable.

A Romney administration “would have had pretty broad authority” to do the things it proposed, Mr. Chen said, even if the balance of Congress prevented a straight-up repeal. He said the health care law is full of gray areas, with numerous provisions that say the health and human services secretary “shall prescribe” various rules.

Congress did afford wide latitude to the executive branch in 2010 when it enacted the health care law. For instance, it allowed the administration to approve state-level alternatives to Obamacare as of 2017.

The waivers, however, “are intended to enhance, not undermine, the ACA’s goals of increased access and lower cost,” according to a 2012 analysis by two Georgetown Law School professors on executive authority to block the law’s implementation.

Mr. Obama and lawmakers from both parties sought to make the waivers available by next year, but no progress has been made on that front.

Mr. Chen said Mr. Romney would have leveraged that type of state choice to alleviate the burden of Obamacare, while Mr. Obama seems to be telling each state that it can set its own course so long as it’s agreeable to the president.

Mr. Jost said Mr. Obama is acting within legal parameters and has not outright refused to implement any part of the law except for the CLASS Act. This component was aimed at providing long-term care for the functionally disabled but proved not to be cost-effective.

Mr. Jost said people who opposed the Romney plan are not likely to backtrack. “I criticized Romney,” he said, “and I don’t feel that way.”

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