- The Washington Times - Sunday, February 16, 2014

President Obama’s repeated use of executive powers to ease the rollout of his health care law could be setting the stage for Republicans to roll back the overhaul’s most controversial parts if they retake the White House in 2016, say analysts who have tracked the law’s shifting landscape.

The president has tweaked or delayed Obamacare’s mandates on employers and individuals without Congress on multiple occasions, each in a bid to put out a political firestorm caused by the law’s rocky rollout.

Although he is taking advantage of discretion built into the Affordable Care Act of 2010, those executive powers also would give “a future President Rand [Paul] or other ACA opponent room to throw a monkey wrench into the works and help try to dismantle the law from the inside,” said I. Glenn Cohen, a health policy analyst at Harvard Law School.

“That said, it was not the president’s decision to delay parts of implementation, so much as the design of the legislation itself, that leaves open this possibility,” he said.

Whether or not Mr. Obama is insulated by the law’s text, Republicans have portrayed Mr. Obama as an imperial leader with little regard for the legislative process. Most recently, Republican leaders ripped into the Obama administration for pumping the brakes on a mandate that requires large businesses to insure full-time employees or pay fines.

The Treasury last week said midsize companies now have until 2016 to comply with the employer mandate, and businesses with 100 or more workers will have more time to comply. The White House previously delayed the rule’s implementation from the start of this year to 2015.

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“The president is setting a very dangerous precedent, as are the congressional Democrats who condone it,” said Brendan Buck, a spokesman for House Speaker John A. Boehner, Ohio Republican.

In November, Mr. Obama said people who lost health insurance that did not meet Obamacare’s requirements could extend their plans for one year or qualify for a hardship exemption from the individual mandate, which requires almost all Americans to have health care coverage.

The White House and its Democratic allies have defended each change as an attempt to roll out the reforms in the most flexible way possible.

“The administration has clear authority to smoothly implement the law,” said Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi, California Democrat. “Therefore, no Republican should use that as an excuse to alter permanently any aspect of the Affordable Care Act.”

But Sen. Mike Lee, Utah Republican, said Sunday that “any high school civics student can tell you” Mr. Obama is usurping Congress’ powers.

“The president knows this is wrong, and it’s not defensible,” he told “Fox News Sunday.” “He’s violating the Constitution.”

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With that backdrop, Republican aides said, it’s hard to predict whether a future president would use similar powers to strip down the law or its mandates.

“I don’t think the way to respond to lawlessness is with more lawlessness,” said Senate Minority Whip John Cornyn, a Texas Republican and frequent Obamacare critic. “I think that would be a bad response.”

Lanhee J. Chen, a research fellow at the Hoover Institution at Stanford University, said executive authority could be an effective tool, even if Democrats lambaste any Republican president’s attempts to delay or change part of the law.

“Are you going to say that [a Republican’s] action is unacceptable just because the intent is different?” he said. “The outcome is the same.”

In 2012, Mr. Chen helped Republican presidential nominee Mitt Romney with a campaign pitch that would have relied on executive powers to allow states to effectively opt out of Obamacare.

Mr. Chen said Mr. Obama’s repeated use of executive action to alter Obamacare’s course could pave the way for a Republican president intent on hobbling the law. He said Republicans such as Chris Christie or Mr. Paul would take the reins and work with GOP majorities in both chambers of Congress to repeal Obamacare.

But when the opposing party controls at least one side of the Capitol, he said, “then I think you’ve got to get creative.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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