By Stephen Dinan
The Washington Times
Thursday, November 14, 2013
President Obama said Thursday that what’s good for illegal immigrants is also good for people who are losing their health insurance because of Obamacare, saying he’ll use prosecutorial discretion to let companies continue to offer health plans that violate his law.
It’s the latest example of the White House trying to work around Congress and instead take action on its own, and in this case it comes as Mr. Obama seeks to stop a wholesale abandonment of his health law by Democrats who have watched the rocky rollout.
“We put a grandfather clause into the law, but it was insufficient,” the president said at the White House as he announced the new loophole he has created.
Under the new loophole, Mr. Obama will leave it up to state health insurance commissioners to decide which sub-standard plans can still be offered by insurance companies, and he has pledged that his administration won’t penalize them for still offering those plans even though they violate the Affordable Care Act. The extension will last only one year.
Republicans were skeptical the administration had the authority to grant exceptions to the law, and they argue the only solution is to change the law through legislation. House Republicans have a bill set for floor action Friday that would do that.
“I am highly skeptical that they can do this administratively. I just don’t see within the law their ability to do that,” House Speaker John A. Boehner said.
But briefing reporters ahead of time, an administration official said they believe they do have authority to suspend enforcement for a year.
“HHS will be using its enforcement discretion to allow for this transition,” the official said. “Enforcement discretion can be used generally in transitions, as well as a bridge towards legislation. This is something that has been used, for example, with the deferred action for childhood arrivals policy, pending immigration reform.”
That immigration policy, known by its acronym of DACA, has proved controversial as well. Under it, Mr. Obama has determined that young illegal immigrants shouldn’t be deported, even though the law calls for that.
A federal judge in Texas ruled that the administration had exceeded its power in telling immigration agents not to arrest or deport those young illegal immigrants, but the judge also ruled he had no jurisdiction over the case because the agents needed to raise the issue through workplace grievance proceedings first.
Just how much wiggle room the president has to ignore or maneuver within a law has long been debated in legal circles.
In a case before the D.C. Circuit Court of Appeals earlier this year regarding nuclear waste storage laws, Judge Brett Kavanaugh said the president “possesses a significant degree of prosecutorial discretion not to take enforcement actions against violators of a federal law.”
Other legal analysts questioned whether that power is inherent in the president’s constitutional prerogatives.
“It is true that the chief executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year — simply to head off actual legislation not to his liking,” said Eugene Kontorovich, a professor at Northwestern University School of Law, in a blog post at Volokh Conspiracy.
“The ‘fix’ amounts to new legislation — but enacted without Congress,” Mr. Kontorovich argued. “The president has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail.”
For his part, Mr. Obama himself has acknowledged limits to prosecutorial discretion. He has rejected calls from immigrant-rights advocates to expand DACA to include all illegal immigrants, saying that would be illegal.