NATIONAL REVIEW ONLINE
November 16, 2013 4:00 AM
The Lawlessness of the ‘Fix’
Insurance companies would be insane to offer plans that failed to comply with the ACA.
By Andrew C. McCarthy
Barack Obama could not have been more unequivocal. The telecommunications companies had to be punished for violating the letter of federal law. He didn’t want to hear about how President Bush told them it was okay.
One laughs now remembering how Obama’s base, the anti-anti-terrorist Left and its lawyer legions, used to call Bush the “imperial president” and thunder for his impeachment. Bush couldn’t hold a candle to our incumbent Caligula. He had no idea, for example, that presidents can just “waive” inconvenient parts of congressional statutes, like FISA.
FISA governs foreign intelligence surveillance. It requires the executive branch to get a judicial warrant before it can eavesdrop on alien terrorists and other foreign agents who threaten national security. Nevertheless, after al-Qaeda killed nearly 3,000 Americans on 9/11, Bush directed the NSA to wiretap suspected jihadists without obtaining court permission. He pressed the telecoms to help the NSA carry out the program — stressing the imperative of protecting American lives during a crisis, assuring these private companies that they would face no legal jeopardy for complying with his request.
Oh no you don’t, Obama and his base shrieked.
After the top-secret program was revealed, a paralyzing debate threatened to shut down American intelligence collection — at a time when we had troops in harm’s way in two war theaters and jihadists continued plotting mass-murder attacks against our homeland. By late 2007, recognizing the desperate need to reopen foreign-intelligence operations, Congress was poised to pass a FISA overhaul that would clarify the NSA’s surveillance authority. But passage was delayed for months because the hard Left refused to budge.
The Left’s goal was to bleed the telecoms dry with lawsuits over Bush’s warrantless surveillance program. Thus they pressured Democrats to block the passage of any FISA bill that would give telecoms the legal protection — in Obama parlance, the “waiver” — Bush had promised them. And the hard Left had a card to play: the contest for the Democratic presidential nomination.
Then-senator Barack Obama, himself a hard Leftist and an opportunist (yes, that’s redundant), realized that captivating the party’s Marxist wing — the anti-business, blame-America-first activists — was vital to capturing the nomination. So he duly dispatched his top campaign spokesman to proclaim to the progressive media, “To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”
Of course, you must keep in mind that this is Barack Obama we’re talking about — a.k.a. Barack “If You Like Your Health Insurance Plan You Can Keep Your Insurance Plan, $2,500 Premium Reductions, Obamacare Is Not a Tax, The Video Caused Benghazi, Raising the Debt Ceiling Is Unpatriotic, I Didn’t Know About Fast and Furious Until I Read About It in the Newspapers” Obama. So naturally, after he snagged the nomination and it came time to appeal to the sane part of the country in the general election, he did his usual 180 and supported the FISA overhaul with retroactive immunity for the telecoms.
The purpose here is not to prove, yet again, that Obama is a fraud, which would be like proving that Detroit may be a tad mismanaged. The purpose is also not to establish, yet again, Obama’s hypocrisy in condemning Bush’s flouting of a single statute when, once he assumed power, Obama so systematically violated laws that you’d think the oath says, “Take care that the laws be faithlessly executed.” The purpose is not even to reprise Thursday’s remarkable press conference, at which Obama — in the very moment of his humiliation over serial lying — brazenly repeated some of his most notorious and resoundingly disproved whoppers: the claim that his oft-repeated promise about Americans being able to keep their health-insurance plans somehow “ended up being inaccurate” when it was willfully false; the claim that this lie affects only the 5 percent of Americans in the individual market when he has known for years (as John Hinderaker shows) that Obamacare would force the cancellation of tens of millions of employer-provided plans; and so on.
No, the purpose is to highlight how insouciantly lawless and transparently political the president’s latest Obamacare “fix” is. I refer, of course, to Obama’s magnanimous proclamation that he now deigns to permit insurers to issue policies made illegal by the Obamacare statute — at least until the Democrats can get through the 2014 elections. This was frivolous to the point of malfeasance.
Let’s start with the basics. The president has no power to rewrite statutes — he is bereft of dictatorial power to legitimize what Congress has made a violation of law. This reflects our abiding conceit that we have “a government of laws and not of men,” ascribed by John Adams to the 17th-century political theorist James Harrington. As Justice Antonin Scalia recounts, Adams provided the best elaboration of this principle when he enshrined it in the 1780 Massachusetts Constitution (my italics):
The legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.
Not only is a president barred from writing or rewriting laws; he is required to enforce them as Congress has written them. The only exception is when he has a good-faith reason to believe they are unconstitutional, a claim Obama can hardly make about Obamacare while crowing that the Supreme Court has upheld it. (Actually, the Supreme Court invalidated half of Obamacare — the state Medicaid mandate — and rejected Obama’s Commerce Clause argument on the individual mandate, upholding it, at least for the time being, on a tax theory that Obama had indignantly disclaimed. But as we’ve seen, this is not a president who lets facts slow him down.)
Obama claims a power to enforce laws selectively under the doctrine of “prosecutorial discretion.” This is merely an allocation doctrine, however: a commonsense acknowledgment that finite resources make it impossible to enforce every law equally. An administration, for example, might say, “DEA has finite resources, so we’re going to focus on heroin trafficking rather than marijuana possession.” This does not mean the administration is saying marijuana possession is no longer a crime; just that it has higher enforcement priorities and a limited budget. To the contrary, Obama has distorted the doctrine to claim, in effect, that illegalities he unilaterally chooses not to police are somehow no longer illegal — at least until the “waivers” he grants expire. (I would call the waivers capricious, but there really is a rigor to them — they expire after Election Day to protect Democrats from political accountability.)
Prosecutorial discretion is the fig leaf Obama uses to rationalize his noxious decision to relieve corporations, political cronies, and members of Congress from their Obamacare burdens while the rest of us are crushed under ours. It is also the hocus-pocus behind his latest fix. Panicked by millions who’ve lost coverage, sinking poll numbers, and jittery Democrats, the president is now purporting to allow insurance companies to ignore the law and reissue the policies Obamacare’s mandates forced them to terminate.
But here is the problem: This “waiver” is irrelevant. Even if it were constitutionally proper for a president to flout Congress in the executive branch’s enforcement practices, all that means is that the Obama administration will give insurers a pass until 2014. The Obama “waiver” does not change what Congress’s law actually says, and therefore it has no bearing on the legal obligations attendant to the relationship between the insurer and the insured.
As a practical matter, it is nearly inconceivable that insurance companies would be able to reissue the canceled health-care plans. The process, as Avik Roy expertly explains, is too extensive and complex to complete in the few weeks between now and Obamacare’s coverage deadline — something that an administration that can’t, after three years, get a functioning website running should know. But even if it could be done, the insurance companies would be insane to offer plans that failed to comply with the letter of the Obamacare statute. Similarly, the state insurance commissioners would be insane to permit them, and Americans would be insane to buy them. The policies would be legally unenforceable.
As the telecoms learned, Bush’s assurance that they’d be held harmless meant nothing once Obama and his base started urging warrantless wiretapping victims to sue. The companies spent untold millions in legal fees and costs. The health-insurance companies, too, would be deluged with lawsuits by insureds who claimed that the policies were illegal and wrongly denied coverage for this or that treatment. The insurance companies themselves would get into the act, filing suits to be compensated for payouts they’d made based on the illegal policies. The Obama “waiver” would avail them of nothing in a court, where a judge would be obliged to follow the law, not Dear Leader’s enforcement preferences.
Obama’s fix, moreover, has two other serious problems. First, when Bush gave assurances to the telecoms — the assurances that Obama ridiculed — he actually had a solid constitutional argument, supported by several court precedents, that his warrantless wiretapping program was legal. That is, because the Constitution vests the president with supremacy over foreign intelligence collection, Bush was not required to comply with FISA warrant provisions. The telecoms were thus able to contend that since Bush’s request for eavesdropping assistance was legal, their compliance with it was legal. And still they were sued, repeatedly and aggressively.
By contrast, Obama has no constitutional leg to stand on in violating — and, by his waivers, encouraging violations of — the Obamacare law. The insurance companies have no hope of immunity.
Second, remember Senator Obama’s posturing over whether he’d filibuster immunity for the telecoms? He was in the position to posture because Bush, like all American presidents until 2009, understood that only Congress can confer immunity from suit. That is why there was no overhaul of FISA until Democrats — under political pressure — finally stood down on their opposition to telecom immunity. The immunity became part of federal statutory law; it no longer depended on President Bush’s mere assurances. Of course, that didn’t stop the Obama Left from continuing to file lawsuits and thereby force the telecoms to spend millions to defend themselves; but at least the suits were dismissed and the damage contained.
In stark contrast, Obama is fighting any congressional tinkering with Obamacare for fear that the unpopular law will be gutted. So there will be no legislative immunity for the health-insurance companies — which means there will be no meaningful immunity, period.
Obama is a charlatan, but not a stupid one. He knows what he did on Thursday was a legal charade. His “waivers” are no more about law than Obamacare is about delivering quality health care. Thursday was a performance contrived to set the insurance companies up. With Americans boiling over coverage cancellations, Obama publicly called on the insurers to offer policies that he well knows his own law makes illegal and that his “waiver” is powerless to legitimize. He desperately hopes Americans will be gulled into blaming the insurance companies for the catastrophe he has wrought.
He would have gotten away with it a year ago. He won’t get away with it now.