The Brazen Lawlessness of ObamaCare's Implementation

Posted: Nov 18, 2013 7:50 AM
The Brazen Lawlessness of ObamaCare's Implementation

Every school child learns (or is supposed to learn) about America's constitutional separation of powers: The legislative branch writes the laws; the executive branch executes (or enforces) those laws; the judicial branch interprets the laws.

All of a sudden, it looks like we have a president -- a constitutional law professor, at that! -- who just doesn't grasp the concept. The implementation of ObamaCare is a case in point.

The ACA does not allow for subsidies to be offered for insurance that is not purchased through a state exchange. Yet the president has simply decreed that such subsidies will be offered.

The ACA specifically says that companies with more than 50 employees must provide insurance for their employees or pay a fine, by January 2014. The president has decreed that this provision will not be enforced.

The ACA makes no provision for Congress or staff to get taxpayer subsidies for ObamaCare. The Office of Personnel Management had stated that no subsidies were available under the law, but then reversed itself under pressure from the White House and made subsidies available.

In an effort to deter Democrats from signing on to Republican legislation (modeled after the President's own repeated pledge that Americans could keep the health insurance they liked) the president has decreed that insurance companies can sell insurance that is otherwise illegal under the ACA.

So what could possibly go wrong with the nation's chief law enforcement officer unilaterally instructing insurance companies that they needn't obey the law as written? Well, for starters:

Just because the president says an insurance company won't be punished, that doesn't absolve that company from legal liability for law-breaking. A business-minded friend and colleague poses the following questions: Can an insurance company really issue a policy the company knows to be unlawful? How may the company book cash received from illegal activities? How may the auditor sign off on the accounting statements? How may the company make regulatory filings that comprise proceeds from illegal activities? What risks does the company run that the administration will change its mind or that another agent at a different agency or level of government will prosecute, or that a policy holder or investor will sue privately for fraud?

These are excellent points -- and indicate that if the president is serious about keeping his promise, he should be backing legislation rather than offering an extra-legal, illegitimate non-remedy remedy of his own. Instead, he's threatened to veto the "Keep Your Health Plan Act of 2013" and Harry Reid -- who (along with a bunch of other Democrat senators) parroted the president's broken promise -- is refusing even to bring it up for a vote.

So much for faithful execution of the law.