True or false? When Greg Sargent asked the White House what authority they have to waive the consumer protections required by ObamaCare, they pointed him to a Supreme Court case from the mid-80s that says a federal agency usually can’t be compelled to apply a federal law in a particular circumstance. Specifically, if I’m understanding the case correctly, a bunch of states were using drugs for lethal injections that had been approved by the FDA for medical purposes but not for the purpose of execution; a bunch of prisoners asked the FDA to investigate the suitability of those drugs for lethal applications. When the FDA refused, the prisoners sued to try to force them. The Supreme Court sided with the FDA, reasoning that citizens can’t force a federal agency to apply a law in each and every circumstance. There has to be some discretion for an agency to say no. If there isn’t, the courts will be filled with lawsuits by aggrieved people trying to force the feds to act on whatever their particular grievance happens to be. Essentially, judges would find themselves being asked to set an agency’s priorities case-by-case.

That’s how I read (and by “read,” I of course mean “quickly skimmed”) the case. There’s a difference, though, between the FDA refusing to apply a statute in a particular circumstance and HHS refusing to enforce ObamaCare in every circumstance, as a matter of policy, which is effectively what O’s “fix” does. He’s telling every insurer everywhere that, for the next year, there’ll be no federal action against plans that fail to comply with the consumer protections required by ObamaCare — which is not unlike what he told DREAMers last year in declaring that there’ll be no deportation actions taken against anyone who meets certain criteria. Is that executive “discretion” in enforcing a statute, or is it effectively re-writing the statute by imposing a blanket policy on when it’ll be enforced? Jonathan Adler:

In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law (while simultaneously threatening to veto legislation that would authorize the step the President has decided to take).

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The President’s decision does not change relevant state laws either. So insurers will still need to obtain approval from state insurance commissioners. This typically requires submitting rates and plan specifications for approval. This can take some time, and is disruptive because most insurance companies have already set their offerings for the next year. It’s no wonder that some insurance commissioners have already indicated they have no plans to approve non-compliant plans.

Yet even if state commissioners approve the plans, they will still be illegal under federal law. Given this fact, why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy.

If a private citizen sued HHS for failing to act against a particular plan offered by a particular insurer that didn’t comply with ObamaCare, that would be similar to the Supreme Court case that the White House is banking on. But what happens when they categorically refuse to act against any insurer for failing to comply with the act? What the White House is really banking on here, I think, isn’t that their action is “legal” so much as it is nonjusticiable. They’re hoping/expecting that the Supremes will turn around and find either that no one has standing to sue (which is what Mike Lee seems to think might happen) or that the Court will agree with the precedent that the White House is touting by finding the lack of enforcement effectively unreviewable as an administrative matter. It’s not that it’s “legal,” exactly, just that there’s … nothing you can really do about it.

Exit question: In the mid-80s case mentioned above, the Court said “In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency’s refusal to institute proceedings should be judicially reviewable.” That is, if Congress inserts language into a statute that says courts should be allowed to hear lawsuits aimed at forcing an agency to enforce the law, then the suit can proceed. Is there any language to that effect in the ObamaCare statute? I’m asking earnestly.