Does Obama Administration Have the Authority to Make Changes to Obamacare?

November 20, 2013

by James Wigderson
Special Guest Perspective for the MacIver Institute

In a belated recognition that Obamacare is not living up to the promise, “If you like your health care plan, you can keep your health care plan,” President Barack Obama announced on Thursday that he is suspending enforcement for a year the provision in the law that requires insurance companies to cancel plans that are not compliant with the Obamacare mandates. Of course, Obama’s action is probably too late for the estimated five million people who have already been issued cancellation notices. It may also be too late for millions more as insurance companies have already set their rates and made their plans for the coming year.

The Obama Administration action on Thursday is an attempt to forestall legislation by congress that would do what Obama promised as a candidate. In proposed legislation first suggested by Wisconsin Senator Ron Johnson, Congress would change the Affordable Care Act to allow insurance companies to continue to offer policies to individuals just as before. A similar bill to make those changes passed the House of Representatives on a bipartisan vote, 261 to 157 with 39 Democrats joining the Republicans.

Of course, making such a change legislatively is not what the Obama Administration wants. The canceled policies are a feature, not a glitch, in Obamacare. Obama’s health care plan needs those people to move to the health care exchanges to make the law’s shaky math work, at least initially. The Obama Administration knew this long before the first cancelation notices went out.

So Obama made his announcement on Thursday, even as House Speaker John Boehner and former Democratic National Committee Chairman Howard Dean questioned whether the president had the authority to do so. As political commentator George Will said on Sunday, “What we’re told in grade school when we study civics is that in that building behind you are the two legislative chambers of the federal government, Senate and the House. It turns out there is a third, it’s called the White House press room, into which the president can, on a whim, sashay and rewrite laws. It’s an extraordinary civics lesson.”

In Wisconsin, Governor Scott Walker also made an announcement on Thursday regarding Obamacare. When Obamacare is supposed to go into effect on January 1st, the state’s Medicaid plan, BadgerCare, is supposed to change to cover 100% of those living beneath the federal poverty line, ending the waiting lists started by Walker’s predecessor former Governor Jim Doyle. Those above the poverty line but qualifying for BadgerCare were supposed to move over to the Obamacare health exchange and receive varying levels of federal subsidies for their insurance.

With the meltdown of the Obamacare website and with just 877 Wisconsinites selecting health care plans in Obamacare’s first month, Walker announced that he would call a special session of the legislature to delay for three months the changes in BadgerCare. In addition, Walker is also asking the legislature to continue the high-risk insurance pool for three months.

There is a provision in state law that allows the governor to delay the changes in Medicaid if the federal government says the federal health care exchanges are not ready yet. Despite all the problems with Obamacare and Thursday’s announcement by the president, the Obama Administration has not made a formal announcement the exchanges aren’t working. So unlike Obama, Walker is asking the legislature to delay the Medicaid changes.

Ironic, then, that Health and Human Services Secretary Kathleen Seblius, the target of heavy criticism for the failures of Obamacare implementation so far, was in Wisconsin on Friday to try to promote the federal health care exchanges and to ask states like Wisconsin to create their own exchanges to implement the federal program.

Unfortunately, a state health care exchange website would still have to work with the problems of the federal website. And a state exchange would not fix the underlying problems of Obamacare, it would only cause to Democrats to try to shift the blame for Obamacare’s failures to the states.

Sebelius should have been taking notes on how Wisconsin actually does things to fix the problems created by her cabinet-level agency. Most of us learned the relationship between the legislative branch and the executive branch in grade school, or at least from School House Rock. That lesson was somehow lost on Obama Administration officials.

While Sebelius was in Wisconsin on Friday she could have re-learned that the legislature is responsible for creating the laws, an interesting lesson in civics she could have shared with the president.