The Obama administration has been under heavy criticism from foes and even some friends for selective enforcement of laws. Executive orders and executive actions have contradicted, delayed, or otherwise modified laws regarding same-sex marriage, immigration, and, most controversial in the last several months, the Affordable Care Act.
The White House has often asserted that the president and his cabinet have flexibility to depart from the letter of the law if the modification or delay is consistent with the spirit of the legislation. The words used to describe these actions are often vague or general in nature, but in testimony Wednesday before the House Ways and Means Committee, Kathleen Sebelius used remarkably candid language to refer to her agency's rewrites of Obamacare. In an exchange with Rep. Tom Reed (R-N.Y.) over why the administration had not sent legislation to Congress to alter problematic portions of the law, Sebelius said [emphasis added]:
“We have implemented a number of changes in the way the law was written to ease the transition into the marketplace” for consumers, insurers and employers.
The secretary seemed to be suggesting that legislative fixes were not necessary because the executive branch already had the power to change "the way the law was written." The president has affirmed this position in the statement released on Wednesday opposing H.R. 4138 ,which calls on the president to "Faithfully Observe and Respect Congressional Enactments of the Law" or face a possible lawsuit by Congress, arguing that Congress's complaints over his administration's rewrites are essentially "political disputes."
The president shows no signs of backing down from his executive actions, and Congress does not seem inclined to acquiesce. Whether or not H.R.4138 is passed into law, this issue seems destined to wind up in court, one way or another.