It’s Nick Rahall, who was all of 27 years old when he was sworn in for his first term in the House in 1977 and has been there ever since — well more than half his life. His problem is that he comes from West Virginia, a state that’s gradually been turning redder: After winning 15 of 16 House elections with more than 60 percent of the vote, Rahall took “only” 56 percent in the big red wave year of 2010 and then 54 percent against his opponent last year. The fact that he’s straining to signal his opposition to O-Care this early, not only voting for Fred Upton’s bill but telling any reporter who’ll listen what a headache this has become for Democrats, shows you how worried he is about another big red wave next year sending him out to sea.
His new soundbite to distance himself from the fiasco is that Obama’s “keep your plan” fix might actually be illegal. Remember, the White House claims that federal agencies like HHS have authority under Supreme Court precedent (Heckler v. Chaney) to enforce laws selectively. I wrote about it last week. It’s true — sort of. You can’t force the local U.S. Attorney to prosecute someone; you can’t force the FDA to investigate a particular drug. Resources are scarce, and courts usually aren’t in the business of telling agencies how to allocate those resources in carrying out their mission. Except … that’s not what Obama’s “fix” purports to do. He’s proposing a blanket policy by which all insurers are free to flout the law laid down in ObamaCare in order to resurrect illegal insurance plans for the next year. Selective enforcement in the name of efficiently applying resources has nothing to with it. That’s a big problem, says law prof Nicholas Bagley:
First, it’s not the federal government’s job to enforce the ACA’s insurance rules. That’s up to the states. It’s hard to justify the administrative fix as an exercise of enforcement discretion when someone else is doing the enforcing. (The feds can step in if a state fails to “substantially enforce” the ACA. But the states were prepared to enforce the law, which is why insurers canceled their non-conforming plans in the first place.)
Second, Heckler is mostly concerned with giving agencies the space to make “discretionary judgment[s] concerning the allocation of enforcement resources.” The administration’s decision to stop deporting DREAMers, for example, can be defended as that kind of judgment. With millions of people in violation of the immigration laws, it’s sensible to devote limited resources to deporting the worst offenders. Here, in contrast, the fix doesn’t really have anything to do with resource allocation. Wedging it into the Heckler rule may therefore be hard…
[T]he D.C. Circuit has suggested that Heckler should be confined to “single-shot” decisions not to enforce against small, discrete sets of violators. In words that seem pertinent here, the court has said that “an agency’s pronouncement of a broad policy against enforcement poses special risks that it has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Distinguishing between single-shot decisions and broad policies isn’t as easy as you might think—even the agency choice at issue in Heckler wasn’t, strictly speaking, a single-shot decision. But the breadth of the fix is another strike against it.
Two problems, though. First, who’s going to sue insurers for offering resurrected plans? The GOP won’t. After spending months arguing that O-Care is egregious because it deprives people of coverage they like, they’re not going to get behind a lawsuit that would, if successful, deprive people of coverage they like. More likely, I think, is Jonathan Adler’s theory of a dispute arising between an insurer and a customer who’s re-enrolled in an un-canceled plan. Even there, though, what incentive does either have to sue in hopes of getting the plan re-canceled? If a court finds the plan illegal, there’d be chaos for the insurer and a lapse in coverage for the customer. Bad news, whoever “wins.” Second, precisely because an adverse ruling next year could wreak havoc for millions of people with un-canceled plans, how likely is it that a court would issue that ruling by finding the plans illegal? It’d be one thing if Landrieu’s bill had passed and the un-canceled plans were set to be offered indefinitely by insurers, but O’s “fix” (like Upton’s bill) is temporary. For prudential reasons, a court would be more likely to let it play out by finding the issue nonjusticiable, no?