posted 08-19-2013 09:48 AM                  

August 18, 2013

Democrats strong-armed Obamacare into law three years ago. Now they're busy flouting it.

The mandate that employers provide insurance next year or pay a penalty, as the law requires? Delayed for at least a year.

The law's dictate that people applying for federal subsidies to buy insurance provide proof that they're eligible for the government aid? Scaled back.

Sharp limits on Americans' out-of-pocket costs for health care? Suspended for a year.

Providing members of Congress and more than 10,000 staff members with federal health care subsidies that the law does not allow? Done, via a deal brokered by President Barack Obama.

And on and on.

The Affordable Care Act, aka Obamacare, is a hugely complex law that sets up online health insurance marketplaces, requires people to have coverage or pay penalties, and doles out subsidies and incentives to nearly everyone in health care. Doctors, hospitals and insurers have spent large sums to gear up for its requirements. Employers are mulling: Hire? Fire? Cut workers' hours?

Millions of Americans, that is, stand to gain or lose from how this law is enforced — with the Obama administration bending that enforcement in ways that test, and arguably exceed, the boundaries of lawful conduct.

Every time the White House undercuts one provision of Obamacare, there is a massive ripple effect on other provisions. It's generally a zero-sum game: When someone gains, someone else loses. Example: When employers are relieved of their mandate to provide insurance, taxpayers risk having to subsidize more of those companies' employees.

The administration asserts that it can make these changes under the president's broad executive authority. Yet critics make a compelling argument that the president is stretching the limits. Former federal appellate Judge Michael McConnell, director of the Constitutional Law Center at Stanford Law School, writes in The Wall Street Journal about a different sort of mandate: the mandate in Article II of the Constitution that the president "'shall take Care that the Laws be faithfully executed.' This is a duty, not a discretionary power. ... As the Supreme Court wrote long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes 'would be clothing the president with a power to control the legislation of Congress, and paralyze the administration of justice.'"

Like most issues of presidential authority, this isn't cut and dried. Presidents do have broad discretion on how laws are enforced. But they're on shaky ground when they decide whether to enforce a law. It's not hard to understand why: Imagine the outcry if President Mitt Romney refused to enforce, say, Obamacare.

Granted, any president may decline to enforce statutes he believes are unconstitutional. But Obama is making no such claim here. Basically, he is admitting that parts of law are impossible to enforce on the deadlines imposed by Congress — deadlines he signed into law. He's also admitting he doesn't want to have Congress make these changes, for fear that if lawmakers get their mitts on this unpopular program, they would at least debate far more extensive changes than he'd like.

Congressional Democrats, and some Republicans, may agree with the numerous delays, changes and special favors. But the president invites chaos when he picks which parts of Obamacare to enforce, and which, in retrospect, he has decided are unworkable or unwise.

In a recent news conference, Obama acknowledged that congressional modification of the law is preferable to these White House fiats: "In a normal political environment, it would have been easier for me to simply call up (House Speaker John Boehner) and say, 'You know what? This is a tweak that doesn't go to the essence of the law. ... Let's make a technical change of the law.' That would be the normal thing that I would prefer to do, but we're not in a normal atmosphere around here when it comes to, quote-unquote, 'Obamacare.'''

Tweaks? Obama isn't making tweaks. He's trying to circumvent major flaws that began flaring when the law was enacted. Hence the many carve-outs, delays and special deals that have been piling up since he added his signature to Obamacare on March 23, 2010.

The president crusaded for this law and has embraced its nickname. But he did not write the law. Congress did. Major changes are necessary — he has stipulated by his actions that this law as constituted cannot work — and Congress should legislate them for his review.

Bottom line: Let's delay and rewrite this ill-conceived law. Congress need not start from scratch. Lawmakers can build on what all of us have learned from three years of painful trial and error. Three years of attempting, but failing, to make this clumsy monstrosity work for the American people.

posted 08-19-2013 09:55 AM                  

In recent months, President Obama and his subordinates have waived or delayed a number of Obamacare’s notable features, such as the law’s employer mandate, and its procedures for protecting taxpayers from fraud and identity theft. Earlier this month, in that context, I obtained a heretofore-unpublished memorandum from the Congressional Research Service. The CRS, Congress’ non-partisan in-house think tank, compiled 82 deadlines that the Affordable Care Act mandates upon the first three years of its own implementation. Remarkably, it turns out that the White House has missed half of the deadlines legally required by the ACA. And some of those deadlines remain unmet to this day.

The new CRS memo, dated June 5, 2013, is an addendum to a series of previous reports in which the agency examined missed deadlines during the law’s first two years. The CRS excluded from its analysis deadlines that don’t reflect on the administration’s competence; for example, as states expand Medicaid, the federal spending associated with those expansions occurs more or less automatically. Deadlines that the law imposes on non-federal government actors, like state governments and private companies, were also excluded.

41 out of 82 deadlines missed by the administration

As of May 31, 2013, when the CRS analysis was completed, the White House had yet to meet 9 of 12 deadlines from the first year after the Affordable Care Act was enacted. It failed to meet 22 of 53 deadlines in the second year; another 8 became moot after Congress did not appropriate funds to complete the assigned tasks. In year three, the administration missed 10 out of 17 deadlines. That’s a total of 41 out of 82 deadlines missed.

If you exclude the 9 deadlines that became moot because Congress never appropriated the funds to meet them, the Obama administration missed 41 out of 73 deadlines, or 56 percent.

In analyzing the CRS report, I erred on the side of generosity. If the administration missed a particular statutory deadline by a week or less, I counted it in their favor as a “met” deadline. In any case where there was ambiguity in the CRS report, I assumed that the administration had met the deadline. So these 50-56 percent missed deadline figures should be seen as slightly conservative.

Most of the deadlines are for bureaucratic busywork

Most of these deadlines aren’t for mission-critical features of the law, and the document reads like a kind of caricature of bureaucratic busywork. For example, Section 10407(d) mandates that by March 23, 2012, the Secretary of Health and Human Services is required to “submit to Congress a report on the appropriate level of diabetes medical education.” To date, the report has not been located. Also on that date, the Secretary is required to “implement a 5-year national public education campaign on oral health care prevention and education.” She missed that one too.

But there are some more economically significant deadlines that the administration has missed. A requirement for the Secretary to “develop requirements for health plans to report on their efforts to improve health outcomes,” also due on March 23, 2012, has not been met to date. A number of rules that would safeguard the privacy of medical records have either yet to be developed, or have been meaningfully tardy in their arrival.

And, of course, if you follow the Obamacare news, you are aware of the high-profile delays that are not included in the CRS report, such as the delay in Obamacare’s caps on out-of-pocket insurance costs.

The administration has tried, almost comically, to make the case that the faulty implementation of Obamacare is Republicans’ fault. But blue states that have embraced the law are the ones having the most problems.

Kevin Counihan, chairman of the Connecticut insurance exchange, has publicly expressed his frustration with the Obama administration’s flakiness. “Sometimes it feels like we’re driving a car and then changing the tire at the same time,” he told the Associated Press in March. “We’re going to have a challenging enough time providing the quality of service that our residents deserve in Connecticut with the deadline that we have. If they keep adding new regulations, I’m sorry. We have to suddenly say, ‘enough is enough.’” Counihan is one of the many people trying in good faith to implement the law who says, “I wish we had one more year.”

No, Obamacare isn’t unraveling

We should make one thing clear. The law isn’t going to “collapse unto itself” or any such thing that conservatives appear to pine for. For every missed deadline or White House waiver, there are nine aspects of Obamacare that are being implemented as we speak.

Obamacare may fail at reducing insurance premiums, or at wisely using taxpayer funds. But the law is scheduled to spend $1.9 trillion over the next ten years. At that, it is unlikely to fail.

A significant amount of that money may not go to the people for whom it’s intended. It may not have the benefits on health outcomes that the law’s most zealous supporters insist it will. But barring substantial Congressional action, that $1.9 trillion will still get spent, along with trillions more thereafter. Only new laws, not wishful thinking, will change that.

posted 08-19-2013 04:56 PM                  

If I am in violation of our homeowner's deed restrictions, and they don't notify me of the violation within 4 years, allowing me to be in violation for those 4 years, they automatically waive their right to enforce it against me as a violation. (This, from our homeowner association's own attorney. He also stated that if it (a particular deed restriction, if not the entire set of deed restrictions) is not enforced equally among everyone, that it cannot be enforced against anyone.)

The CRS, Congress’ non-partisan in-house think tank, compiled 82 deadlines that the Affordable Care Act mandates upon the first three years of its own implementation. Remarkably, it turns out that the White House has missed half of the deadlines legally required by the ACA. And some of those deadlines remain unmet to this day.