Actually, we don’t know for sure that this is a lie. Could be that Sebelius and her team simply don’t know all of the nuances of the law they’re tasked with implementing, which is almost — almost — forgivable given the complexity of the project.
As it is, we’re back to a recurring theme of Launch Month. Are she, Obama, and their deputies lying about who knew what and when? Or is this simple guileless negligence at work?
In a visit to a community health center in Austin, Texas, on Friday, Sebelius acknowledged more testing would have been preferable. “In an ideal world there would have been a lot more testing, but we did not have the luxury of that and the law said the go-time was Oct. 1,” she said.
But the law imposed no legal requirement to open the website Oct 1. The law says only that the enrollment period shall be “as determined by the secretary.” The launch date was set not in the law, but in regulations her department had issued. Agencies routinely allow themselves flexibility on self-imposed deadlines.
Officials could have postponed open enrollment by a month, or they could have phased in access to the website. Oregon, one of the 14 states that built its own website under the federal law, did just that, allowing initial website access only for counselors instead of the general public.
Two obvious reasons why they didn’t delay. First, the deadline for enrolling is December 15 if you want coverage to take effect on January 1. The White House probably figured they were better off letting people try, with a select few succeeding through sheer luck and perseverance in running the Healthcare.gov gauntlet, than to keep the whole thing offline so that no one could sign up. There’s political advantage in that. The people who are most determined to enroll early are the sick, to take advantage of the new preexisting conditions rules that go into effect on January 1. The more of them who are on the books now, the crueler and thus less politically palatable it’ll seem to delay the whole law later because of persistent website problems. Second, they didn’t want to hand the GOP a major political victory, especially with a shutdown in effect. Not only would that have been even more of an I-told-you-so moment for Republicans than we’re experiencing now, it would have looked like Obama was bowing to “defund” demands. For all the arguments that the defunders shot the GOP in the foot with their brinksmanship, it may be that the White House wouldn’t have exposed itself to this weeks-long humiliation by insisting on rolling the site out on October 1 if not for them.
Anyway, here’s what the law says about setting a date for launch:
(6) ENROLLMENT PERIODS- The Secretary shall require an Exchange to provide for–
(A) an initial open enrollment, as determined by the Secretary (such determination to be made not later than July 1, 2012);
Sebelius’s point, I think, is that once she set October 1, 2013 as the launch date, she can’t now undo it. The ObamaCare statute itself says that the date has to be chosen by July 1, 2012. Her hands are tied! Except, as Phil Klein noted on Twitter earlier, there’s nothing forcing her to roll out the *website* on October 1. She could have opened enrollment via phone calls and paper applications on that date and promised that the website was coming. Another problem for the my-hands-are-tied excuse is that 10 Democratic senators signed a letter last week urging Sebelius to extend the initial open enrollment period beyond March 31, 2014 due to all the website glitches. If, as she claims, she was forced to launch on October 1 by the statute, she should also be forced to stick to March 31 as the deadline. Bear that in mind, because the White House will think carefully about an extension if they’re not showing progress in solving Glitchapalooza in a few weeks. Which, of course, wouldn’t be the first time they’ve ignored the law: The employer mandate is required by statute too but Obama wished that into the cornfield this past summer as part of his novel “I don’t have to enforce laws that are politically inconvenient” theory of the Constitution. They care about the rules only when it helps them to care about the rules.
Speaking of which, read this post by Chris Jacobs of the Heritage Foundation noting an upcoming deadline that you likely haven’t heard of but which might become important over the next few days. Insurance companies that have joined the ObamaCare exchanges have until October 31 to withdraw if HHS “materially breaches” their contract. Failing to create a functioning online insurance hub by the end of October is, arguably, a material breach. Will any insurers decide to abandon ship over the next 72 hours or would that be too politically dangerous for them at this point?