Rewriting Its Own Bad Obamacare Law

Who needs Congress when the Obama administration is ready to legislate?

Doug Bandow
The American Spectator

President Barack Obama won big when Congress passed his health care bill. But the administration made a serious mistake and now is trying to rewrite the law. Without going to Congress, as required by the Constitution.

The central feature of the misnamed Patient Protection and Affordable Care Act is the requirement that Americans buy health insurance, which Supreme Court Chief Justice John Roberts decided really wasn’t a mandate in a bizarre opinion upholding the law. As important as that requirement are the exchanges through which people are supposed to purchase insurance.

PPACA includes tax credits and subsidies so people can afford insurance made more expensive by a gaggle of new federal requirements. Congress didn’t just decide that people have to buy insurance. People must purchase insurance as determined by Washington. Or, more accurately, the Health and Human Services bureaucracy, which is empowered to decide every Americans’ coverage.

However, Congress and the president tied federal tax credits and subsidies only to policies purchased through state-established exchanges. Apparently the administration did not imagine that anyone would defy Uncle Sam. However, so far only 14 states and the District of Columbia have created exchanges. At least half of the states are likely to refuse to construct insurance exchanges. Which means Washington will have to do it for them. Indeed, HHS Secretary Kathleen Sebelius admitted that the federal government may have to run as many as 30 exchanges. But PPACA did not provide tax credits or subsidies for federally established exchanges.

Which creates another problem for the administration. In a recent paper for Case Western Reserve University School of Law, Case Western law professor Jonathan Adler and Cato Institute scholar Michael Cannon point out: “The tax credits and subsidies for the purchase of qualifying health insurance plans in state-run exchanges serve as more than just an inducement to states. For example, these entitlements also operate as the trigger for enforcement of the Act’s ’employer mandate.’ As a consequence, that mandate is effectively unenforceable in states that decline to create an exchange. Because such a large number of states may decline to create exchanges of their own, it may be difficult to implement the law as some had intended.”


In a system based on the rule of law, the Obama administration would go back to Congress and ask it to “fix” the law. But the administration knows that the GOP-dominated House would laugh in response. Even the Senate, with increased Republican membership, would refuse. So the president decided to dispense with the legislative branch and make law on his own…

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