Philip Klein has some interesting observations on the long term effects of Barack Obama’s handling of the, shall we say, shortcomings of the Obamacare roll out. He cites an earlier analysis of his – one from the previous election – where he opined that a hypothetical President Romney would have a hard time actually exempting all of the states from Obamacare until at least 2017.. if it could be done at all. But the recent actions of President Obama may have demonstrated a path by which a truly robust chief executive could cut a few corners and get the job done quick like a bunny.
Though I still believe I was right about what the statute said, as it turns out, I was being old-fashioned by taking the letter of the law so literally.
Having watched President Obama and Secretary of Health and Human Services Kathleen Sebelius over the past several months unilaterally alter or outright ignore major portions of the law, I now believe that a future Republican president would have greater latitude to gut Obamacare than I once thought possible.
The changes instituted by the Obama administration in response to implementation snags have ranged from perfectly legal areas of administrative discretion stemming from the vast regulatory powers granted to the HHS secretary under Obamacare, to more creative interpretations of that discretion, to Obama simply choosing to ignore parts of the law that became inconvenient.
Obama has turned his signature legislative accomplishment into a constantly evolving wikilaw, with editing privileges restricted to himself and a few administration officials.
He’s largely been able to get away with it due to the difficulties posed by gaining standing in court for legal challenges.
The President delayed some portions of the bill. He claimed that he wouldn’t enforce others imposed on the health insurance companies. HHS is now proposing to make new changes to alter a provision of Obamacare known as the “risk corridors” program, channeling more money to insurers who no longer think they can pull a rabbit out of this particular hat. And all of these actions are making changes – either directly or in de facto enforcement – to a piece of legislation passed through Congress and signed by his own hand.
In the old days, you needed to go back to the well and make changes through the legislative process. By Klein’s reckoning, those days are past. Getting the bill through once is sufficient, and after that the Executive Office can just tailor things as needed. Such tailoring could obviously include directing the appropriate offices and functions to simply ignore the whole thing, no? It sort of takes the idea of presidential signing statements to a whole new level. And who would have guessed that Barack Obama would solve this puzzle himself?