This week, like almost every inconvenient deadline of the Affordable Care Act, the target date for Americans to get coverage and avoid facing penalties was extended. The media’s reaction came in two forms: 1 – The GOP would do the same. 2 – You don’t really care:
is anyone upset by ACA enrollment extension except those who want fewer people to sign-up and exchanges to fail?
— John Harwood (@JohnJHarwood) March 26, 2014
That’s easy. I do root for Obamacare to fail. Or, rather, I believe the more people who sign up for state exchanges the more America fails. But I also appreciate that my outlook isn’t shared by everyone. That’s why representatives of the people in the House, Senate and the executive branch create, and then sign, laws with definitive parameters and explicit language.
And as antiquated and malleable as some view the Constitution, it clearly says something about the president taking care “that the laws be faithfully executed.” The ACA features no addendum stating “but if this doesn’t work out, the executive branch should feel free to make revisions to guarantee the law is a ‘success.’” So a person can be apprehensive about Obamacare on more than one level just as easily as John Harwood can appreciate the wonders of ACA exchanges and also fret over the lawlessness of implementation (a word that should be loosely used).
It must be noted that blowing Monday’s deadline wasn’t illegal, only a lie. Obamacare doesn’t specify how long the open enrollment period should last. But, as another delay is part of a slew of extensions and/or delays enacted without statutory power, it has a broader meaning. The “law” is now nothing but an ambiguous assurance that allows the administration to function — almost always for political gain — as it pleases. As Michael Cannon has noted, the administration has disregarded the requirement that recipients of insurance subsidies enroll in coverage through state exchanges. And, without any congressional authorization and contrary to the language of federal law, the administration is handing out subsidies to people enrolled through HealthCare.gov. The latest delay only adds to a far larger problem.
So when delays can’t be defended, the next best step is to accuse the other side of future hypocrisy.
When Boehner says “the law is the law” should we assume he would have opposed President Romney changing it via executive order?
— Sam Stein (@samsteinhp) March 26, 2014
To begin with, this is untrue. The Affordable Care Act plainly states that the Secretary of Health and Human Services has the authority to grant states waivers. Romney had promised to sign an executive order directing the Secretary to use the provision for all 50 states (and the states would not be compelled to use them) while Congress debated repeal. This would not have “changed” the law. The Obama administration, after all, has also handed out a number of cronyist waivers.
Do I believe John Boehner would be griping if President Mitt Romney were equally negligent of following the law? Of course not. We can deal with the future hypocrisy when it happens. But even that objection proves a point. It’s the reason we have law. So a more relevant question might be: How would Democrats feel if the House unilaterally delayed funding for Obamacare programs? If one branch can ignore timetables and knead legislation into something that fails to resemble the law that passed, then we have significant abuse of power in Washington. It seems like this would be a precedent even honest left-wing journalists might be troubled by.
David Harsanyi is a Senior Editor at The Federalist and author of the The People Have Spoken (and They Are Wrong): The Case Against Democracy. Follow him on Twitter.