Throughout 2013, as implementation of his signature health care law hit snag after snag, President Obama unleashed a steady stream of administrative revisions of the Affordable Care Act without seeking the approval of Congress, which is the branch empowered with making and changing laws. Among other things, he delayed the employer mandate, income verification requirements and the exclusion of union plans from a new fee.
Then in November, as millions of Americans received cancellation notices from their insurers informing them — contrary to Obama’s promises — they would not be able to able to keep their health care plans, he announced an “administrative fix” that amounted to him saying he wouldn’t enforce his own law, which barred certain insurance policies.
Congressional Republicans, backed up by a number of legal scholars, have warned Obama this is unconstitutional. Now state attorneys general are doing the same. In a Dec. 26 letter to Secretary of Health and Human Services Kathleen Sebelius, 11 AGs, led by West Virginia's Patrick Morrisey, raised multiple objections to Obama's decision, under which the president left it up to state regulators and insurance companies to work out whether they were going to abide by Obamacare's legal requirements. The letter also was signed by the AGs of Alabama, Georgia, Idaho, Kansas, Louisiana, Michigan, Nebraska, Oklahoma, Texas, and Virginia.
Morrisey argued that Obama's decision violated the president's oath of office promise to faithfully execute the laws. Though the U.S. Supreme Court has ruled that in narrow circumstances (such as a federal agency's need to allocate limited enforcement resources) there might be some room for enforcement discretion by the executive branch, Morrisey and the other AGs contend that Obama's “fix” on the cancelled plans went way beyond established legal boundaries.
Furthermore, Obama’s executive action also requires insurers who want to be exempted from the enforcement of the rules to provide a notice specifying the benefits that won’t be available under the “grandfathered” plan that would otherwise be available under an Obamacare-compliant plan. But this new disclosure requirement necessitates a legislative change. “The undersigned attorneys general support allowing citizens to keep their health insurance coverage,” the letter read. “However, the only way to fix this problem-ridden law is to enact changes lawfully: through congressional action. The illegal actions by this administration must stop.”
The letter also raised alarms about the lack of safeguards to protect the personal information of those applying for health insurance through Obamacare. Specifically, the AGs noted that individuals hired to help Americans sign up for insurance do not currently have to go through a proper criminal background check or fingerprinting even though they’ll have access to sensitive data.
“The administration's current security standards are simply inadequate,” the AGs said. They recommended that Sebelius take a number of steps to improve security, including instituting criminal background checks and asking navigators to take the same oath as U.S. Census workers to protect personal information. Obama must obey the law. Eventually the courts will force him to do that, but what harm will come first?