‘ObamaCare” is useful shorthand for the Affordable Care Act not least because the law increasingly means whatever President Obama says it does on any given day. His latest lawless rewrite arrived on Monday as the White House decided to delay the law’s employer mandate for another year and in some cases maybe forever…

Either ObamaCare is ushering in a worker’s paradise, in which case by the White House’s own logic exempting businesses from its ministrations is harming employees. Or else the mandate really is leading business to cut back on hiring, hours and shifting workers to part-time as the evidence in the real economy suggests…

Changing an unambiguous statutory mandate requires the approval of Congress, but then this President has often decided the law is whatever he says it is. His Administration’s cavalier notions about law enforcement are especially notable here for their bias for corporations over people. The White House has refused to suspend the individual insurance mandate, despite the harm caused to millions who are losing their previous coverage…

Liberals say the law isn’t harming jobs or economic growth, but everything this White House does screams the opposite.

***

[W]hatever it might tell us about the White House’s assessment of its administrative and political difficulties, it surely reinforces something we already knew about the administration’s assessment of its obligations to the rule of law — namely, that the administration believes it has none.

We have here a written statute that levies a fine on large employers who fail to provide insurance coverage as a benefit to their employees. It defines a large employer as “an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year,” provides a relatively detailed set of criteria for applying that definition, and states that the provision “shall apply to months beginning after December 31, 2013.” We have already seen that latter date pushed back by a year without obvious legal authority, and now we see it pushed back by another year for some affected employers while the requirement is loosened for others. If this kind of selective enforcement of a public law is legitimate, then how exactly would the president describe the limits of his ability to engage in such selection? Is he bound in some definable way to the particulars of statutes as written and passed by Congress, or does he merely take them as suggestions for how he might proceed?

***

Courts are unlikely to do anything here either, as it is not clear who would have standing to challenge the latest rule. In order to demonstrate standing, a plaintiff must show that they are directly and personally injured by the government action at issue. While delaying the employer mandate means some people will not get employer-provided insurance this year, it is difficult to figure out who those people are and even more difficult to prove what a given firm would have done were the mandate enforced on schedule. Some firms would likely provide insurance to their employees, as the law anticipates, but others might elect to pay the penalty instead. For standing purposes, it’s a matter of conjecture which firm is which. And without the ability to demonstrate a concrete and particularized injury that was caused by the government’s action (and that would be redressed by a favorable court judgment) there is no standing to sue…

The Obama Administration is not the first to take liberties with the laws it is charged with executing, and it will not be the last. Yet the increasing brazenness with which the Administration is disregarding inconvenient or ill-conceived portions of its signature legislative achievement lowers the bar to a disturbing degree. Even where ad hoc administrative revisions seem justified to ease the law’s implementation, such moves are illegal if not authorized by Congress. The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them.

***

But beyond the specifics of the new rule or the policy impact of these latest deferrals, it is yet another example of the administration losing credibility with the public, the insurance industry, and the business community over the implementation of the ACA.

Small-business owners have been trying to understand and plan for the impact the ACA will ultimately have on their bottom line and benefit packages since the law passed in March of 2010, and it hasn’t been easy. With the administrative agencies putting out rules on delayed timelines only to reverse them, releasing new guidelines every year, making important policy changes via obscure FAQ documents, and blatantly ignoring the legislative text when making these decisions, what is left of the law is highly confusing and disruptive to companies trying to plan for the future.

***

[T]o make an insurance system work you have to have a set of consistent and consistently applied rules. You can’t have some people choosing to be out today and in tomorrow. You can’t have a system where insurers price products based upon one set of conditions and then you keep backing off on the conditions consumers and employers have to follow.

The administration really has three options:

1.Full speed ahead––enforce all of the original rules. Just take the political heat believing you have crafted a system that will work. This is what they have been telling us for almost four years now!
2. Do a comprehensive and rational fix that provides for a modified system for everyone learning from the mistakes that were made.
3. Let it unravel one step at a time caving in to every constituency that threatens a vulnerable Democratic Senator and end up with a worse mess.

Looks to me like they are on track for number three.

***

Now, if all this haphazard implementation were only a matter of improving what are onerous and poorly written facets of Obamacare, that would be one thing. A bad thing, yes. But what makes this free-for-all an especially blatant abuse of power is that the delays are enacted almost exclusively for political reasons.

If some of your deep-pocketed cronies visit the White House, delay the law’s employer mandate. Why not? If the risible Medicare cuts you concoct to sell ACA to voters by keeping the price tag under a trillion dollars become distasteful to voters leading up to an election, just delay the cuts until you have a more advantageous environment. If caps on out-of-pocket insurance costs haven’t panned out like you promised — delay for another year. Small Business Health Options Program? Delay. Employee Auto-enrollment? Delay. Pre-existing conditions insurance sign-up? Delay…

Notice that even [news] outlets must admit that the impetus for delay is a political consideration — “limit election-year damage” and “defuse another potential controversy” — not an effort to craft a more useful law. Normally, when policy is as burdensome and ungainly as the Affordable Care Act has been, an honest person might admit that perhaps something isn’t exactly right with the law itself. Not today. A never-ending fount of partisan defensiveness makes it impossible to rethink — much less repeal — any part of Obamacare.

***

What’s striking here is that liberals have gone along with these moves from the White House…

The problem with this is that, of course, if it becomes accepted American Constitutional tradition that the President can apply whatever laws she wants, well, that tradition applies to Republicans as well as Democrats. Now that the Obama Administration has set a precedent that the White House can decide not to apply parts of Obamacare, it has given the authority to the next Republican administration to rewrite the health law at will, without even having to go to Congress. But, apparently, this doesn’t make liberals blanch.

Of course, the next Republican administration might want to use this new presidential superpower to rewrite all sorts of laws. Entitlement laws. Labor laws. Environmental laws. Abortion laws. Financial regulations. Civil liberties. The list goes on.

For decades, conservatives have been dreaming of enough power to reshape an American government that, despite the Reagan revolution, still remains fundamentally liberal in its structure. The Obama Administration may be handing it to them. With a liberal cheering section.

***

Washington D. C. — In a move certain to please his conservative supporters and infuriate his critics, President Romney announced this afternoon that his administration would make yet another change to the Patient Protection and Affordable Care Act. In a terse release, posted without fanfare to the Department of Health and Human Services website, officials revealed that the law’s employer mandate would be suspended until 2016 for all businesses that employ between 50 and 99 people…

“This is an utter disgrace,” griped Senator Chuck Schumer (D., N.Y.). “This law was passed through Congress, signed by the previous president, and upheld by the Supreme Court.”

Schumer’s colleague, Senator Harry Reid of Nevada, described the Romney administration’s behavior as “the nuclear option.” “This abuse of executive discretion is beyond the pale,” Reid fumed. “I’m a lawyer, I know.”…

An unfortunately timed remark, made by Romney as he left a meeting at Thomas Jefferson’s Monticello this morning, is certain to throw fuel on the fire. “That’s the good thing as president,” he was heard to joke, “I can do whatever I want.”

***

***

***

Via the Daily Rushbo.