Obama’s Obamacare Fix Not Really Legal


Jonathan Adler explained how President Obama’s administrative fix to Obamacare is not exactly legal. The policies outlawed by Obamacare will still be illegal, he has just decided not to enforce the law he signed. Insurance companies that are able to have the old policies approved by state commissions may still face some legal problems if they continue selling those old policies.

Yet even if state commissioners approve the plans, they will still be illegal under federal law. [See clarification below.] Given this fact, why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy. If there’s an answer to this, I haven’t seen it [but see below]. It’s almost as if the Administration has not thought this through.  As Sarah Kliff reports, this supposed “fix” creates a “big mess.”

Read the whole thing. Obama seems to think he can just change laws at his own whim, but he can’t. The House passed a bill today which would allow companies to continue selling policies they sold before – legally – and he said he will veto that plan. So it seems his whole motivation is to jam up the insurance companies so he can turn around and blame them for this disaster he and his comrades in Congress created.

Rush Limbaugh made another point about this whole mess. During the shutdown we kept hearing from the White House and the Democrats that everything had to be shut down and barricaded, that they had no choice and no discretion. Same thing they did with the sequester. But now it’s okay for Obama to pick and choose what he enforces?

But for themselves, they reserve the right to enforce or not enforce parts of a law that they don’t like.  And the Regime did announce, if you remember, that they were just gonna stop defending the Defense of Marriage Act.  So according to this legal beagle, Obama can do this.  The federal government does have the discretion to enforce or not enforce a law.  However, again, it is supposed to be based on whether or not they’ve got the means to enforce it, adequate personnel, resources.  This is not that.  He’s choosing not to enforce this for purely political reasons.