Obama claims a power to enforce laws selectively under the doctrine of “prosecutorial discretion.” This is merely an allocation doctrine, however: a commonsense acknowledgment that finite resources make it impossible to enforce every law equally. An administration, for example, might say, “DEA has finite resources, so we’re going to focus on heroin trafficking rather than marijuana possession.” This does not mean the administration is saying marijuana possession is no longer a crime; just that it has higher enforcement priorities and a limited budget. To the contrary, Obama has distorted the doctrine to claim, in effect, that illegalities he unilaterally chooses not to police are somehow no longer illegal — at least until the “waivers” he grants expire. (I would call the waivers capricious, but there really is a rigor to them — they expire after Election Day to protect Democrats from political accountability.)
Prosecutorial discretion is the fig leaf Obama uses to rationalize his noxious decision to relieve corporations, political cronies, and members of Congress from their Obamacare burdens while the rest of us are crushed under ours. It is also the hocus-pocus behind his latest fix. Panicked by millions who’ve lost coverage, sinking poll numbers, and jittery Democrats, the president is now purporting to allow insurance companies to ignore the law and reissue the policies Obamacare’s mandates forced them to terminate.
But here is the problem: This “waiver” is irrelevant. Even if it were constitutionally proper for a president to flout Congress in the executive branch’s enforcement practices, all that means is that the Obama administration will give insurers a pass until 2014. The Obama “waiver” does not change what Congress’s law actually says, and therefore it has no bearing on the legal obligations attendant to the relationship between the insurer and the insured.