The Magazine

Mandate Madness

Jul 29, 2013, Vol. 18, No. 43 • By JEFFREY H. ANDERSON
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It is not often that a president announces his decision not to enforce a law as written, the House of Representatives responds by offering to restore the rule of law by amending that law to permit the delay the president wishes .  .  . and then the president threatens to veto that legislation if it gets to his desk. But such is the pathbreaking and jaw-dropping spectacle of Obamacare.

Obamacare

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On January 21, 2009, President Obama said, “Transparency and the rule of law will be the touchstones of this presidency.” In the late afternoon of July 2, 2013, the Obama administration announced, in a blog post, that it had decided not to enforce the employer mandate—Obamacare’s requirement that businesses with 50 or more employees provide federally approved health insurance—during the first year that the law calls for that provision to go into effect. In issuing its lawless delay, the administration all but admitted that, despite having had more than three years and three months since Obamacare’s passage to prepare to enforce the legislation, it had failed to get the job done on time. House Republicans responded by holding votes on delaying the employer mandate as a matter of law, rather than of executive fiat, and also on delaying the despised individual mandate—long the least-popular part of Obamacare.

Both pieces of legislation passed the House by large margins—the employer-mandate delay by 264 to 161, with 35 Democrats joining all but 1 Republican; the individual-mandate delay by 251 to 174, with 22 Democrats joining all but 1 Republican.

The House votes showcased a number of things, almost none of them good for Obamacare or for the party that rammed it into law against the will of the American people. Republican members and conservative groups showed a willingness and ability to be smart and nimble, which is already bearing political fruit and could bear a lot more in the weeks and months to come. Democratic members and their liberal allies showed a striking indifference to the rule of law—and to Congress’s role as the sole federal entity vested with the legislative power—which many Democrats will likely have a hard time explaining to their constituents. (“So, you support President Obama’s delay of the employer mandate, but you didn’t want to delay the individual mandate, and you also voted against delaying the employer mandate, even though you support Obama’s delaying it?”)

Meanwhile the Obama administration exposed to the light of day its barely hidden contempt for the separation of powers, the rule of law, and the president’s constitutional duty to take care that the laws be faithfully executed. In a statement released shortly before the House vote, the administration called the vote to provide legislative authority for the employer-mandate delay “unnecessary.” The president, after all, had already exercised his imaginary line-item veto. With this attitude, one wonders why anyone in Congress would consider passing, say, immigration reform, knowing that the president thinks he can alter or delete provisions of the law (say, the enforcement of the border, or deadlines that must be met before granting citizenship) at his whim.

The plain language of Obamacare declares that the employer mandate “shall apply to months beginning after December 31, 2013.” It does not say that it shall apply to whatever months after that date that the president chooses to make it apply. Democratic senator Tom Harkin responded to the administration’s unilateral action by saying, “This was the law. How can they change the law?” Even the Washington Post’s Ezra Klein, an ardent defender of the administration, opined that while “delaying Obamacare’s employer mandate is the right thing to do,” Obama’s “regulatory end-run around Congress is not the right way to do it.”

Obamacare, it must be said, is looking more and more like an unmitigated disaster. Besides delaying the employer mandate, the administration also announced it was delaying the “mandatory employer and insurer reporting requirements.” The IRS, however, needs to have access to such reporting to determine whether individuals who apply for Obamacare’s hefty taxpayer-funded insurance subsidies are eligible for them. By law, the only people eligible for subsidies are those who have incomes below 400 percent of poverty and who aren’t offered “affordable coverage” by their employer. If employers are no longer required to report what insurance benefits they offer, the IRS cannot verify employees’ eligibility for subsidies. In the midst of a 606-page regulation released on Friday, July 5, the administration acknowledged this problem, stating that “the exchange may accept the applicant’s attestation regarding enrollment in [an] eligible employer-sponsored plan .  .  . without further verification.” In other words, exchange subsidies will now flow forth on the “honor system.”

That swings the door wide open for defrauding taxpayers. Think government programs are safe from such concerns? Think again. The Government Accountability Office estimates that, in 2011, Medicare and Medicaid made a whopping $50.7 billion in fraudulent payments. That same year, the combined annual profits of the nation’s 10 largest insurance companies were $13.7 billion. In other words, the government lost almost four times as much as private insurers made. Obamacare will significantly increase government losses to error and fraud, which is why House Republicans should vote to delay the implementation of Obamacare’s exchanges for at least as long as its employer mandate and the attendant reporting requirements are delayed.

None of this should be too surprising. As Obama’s secretary of Health and Human Services Kathleen Sebelius told Americans shortly before it passed, Obamacare isn’t really conducive to being implemented in part or rejected in part. Sebelius said, “The president remains committed to the notion that we have to have a comprehensive approach, because the pieces of the puzzle are too closely tied to one another.” She added, “Pieces of the puzzle are necessarily tied together if you have a comprehensive approach.” Yet now a few key pieces have been removed by the administration itself—making Obamacare already look piecemeal, arbitrary, and impermanent.

In the meantime, the Obama administration continues to use taxpayer money and the bully pulpit to tout the supposed benefits of Obamacare’s taxpayer-financed exchange subsidies. Just last week, the administration alleged it was providing relief from what it claimed were $1,000-plus pre-Obamacare individual monthly premiums in states like New York—where Kaiser says the average individual premium was $357 a month in the year that Obamacare was passed—while desperately trying to lure people into the exchanges with the promise of “free,” and now largely unmonitored, money.

While the House moves forward on voting to delay the exchanges and the subsidies, Senate Republicans should do everything in their power to force a vote on the House-passed delays of both the employer and individual mandates. This legislation is ripe for a vote in the Senate. Senate Republicans should try and try again to force their Democratic counterparts to vote on what parts of Obamacare should be delayed—and what parts of our constitutional separation of powers should be discarded. The comprehensive repeal of Obamacare remains essential to our prosperity and our liberty. Last week the House of Representatives took a significant step in that direction.

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