President Barack Obama has illegally suspended the single most important provision of Obamacare, the infamous Individual Mandate, for some Americans.
On Dec. 19, the president declared a change to the Individual Mandate, a provision that led to the first lawsuit in American history where a majority of the states in this nation (26 out of 50) sued the federal government over the constitutionality of a federal law, resulting in a historic Supreme Court decision that conservative lawyers and scholars roundly condemn insofar as it upheld the Individual Mandate as a massive tax by a 5-4 vote.
The Obama administration’s disastrous rollout of Obamacare has been a textbook illustration of the manifest incompetence of government to run the American healthcare system, from the humiliating website difficulties to the eye-popping costs of skyrocketing monthly insurance premiums and deductibles. The White House explains that it would be unfair under these circumstances to penalize Americans who attempt to obtain insurance through the Obamacare exchanges but are unable to do so.
Therefore the president has declared a “hardship exemption” for Americans encountering those difficulties. There will be a grace period for at least part of 2014. The White House has not specified a firm date of when this exemption will definitely end, or how they will be able to distinguish with certainty people who earnestly tried to obtain insurance versus those who are gaming the system.
But this exemption, like those that came before it, is illegal. The language of ACA’s Section 1501 is to impose a truly-mandatory Individual Mandate. Conservatives insist that even if all the provisions in the ACA are applied, the system will not work financially. But even liberals admit that if the Individual Mandate is not in force, then you do not bring in enough revenue from young, healthy adults to pay for the staggering cost of the massive new entitlements and programs that the ACA creates. Without the Individual Mandate, you get a “death spiral” of growing deficits that will render health insurance companies insolvent and deprive healthcare providers of payment for their life-saving treatments.
In Section 1513 of the Affordable Care Act (ACA), the Employer Mandate (the requirement for companies employing 50+ people) specifies that this requirement for employers to offer insurance goes into effect Jan. 1, 2014. When Obama announced over the summer that he was suspending that requirement until 2015, he said he has the power to “tweak” a law so long as that tweaking “doesn’t go to the essence of the law.”
That’s dead wrong under the U.S. Constitution. Ironically, it would not apply here anyway, since some of these provisions like the Individual Mandate and the Employer Mandate are two of the most important provisions of the entire ACA and are essential to the ACA’s core operations. However, even if they were insignificant provisions, the Constitution does not permit a president to change a single semicolon of a federal law by himself.
Under Article I of the Constitution, every law must either pass the House, the Senate, and be signed by the president, or if the president vetoes the bill instead of signing it, then it must pass the House and Senate a second time, by a two-thirds super-majority vote in each chamber. That is the only process by which federal law can be made. Everything else is illegal.
Many laws authorize top administrative officials to develop regulations carrying the force of law to implement some provision in the law. Other laws contain provisions that empower executive-branch officials to suspend or modify certain legal requirements, usually for a fixed period of time and only after certain conditions are met, such as completing a study that discovers facts that are relevant to the law’s operations. This power is delegated by the terms of the statute, where the federal law-making body–Congress–votes to include such an option in a law.
That is not the case with these parts of Obamacare. The changes in the law that President Obama has announced, such as telling insurers in Nov. 2013 that they could continue offering canceled policies, have been unilateral changes to mandatory terms in the federal law passed by Congress. These are provisions where Congress did not allow Obama or any of his Cabinet secretaries any discretion or options. They are requirements that bind the government and the private sector.
So not only is Obamacare bad policy, but now another aspect of this program is illegal.
Ken Klukowski is senior legal analyst for Breitbart News and represented Members of Congress at the Supreme Court in Obamacare litigation. Follow him on Twitter @kenklukowski.