Pro-Obamacare legal expert admits president broke law
Law prof has published many articles praising health-care takeover
Published: 11 hours ago
A University of Michigan law professor who has written commentaries and opinion pieces in major publications from the Los Angeles Times to the New York Times in praise of Obamacare now admits the president broke the law in his implementation of a requirement that citizens buy government-ordained health insurance plans or be fined.
Nicholas Bagley’s new stance grabbed the attention of Case Western Reserve University professor Jonathan Adler.
Writing at the Volokh Conspiracy legal blog, he pointed out that there’s nothing new about claims that “the Obama administration has repeatedly flouted legal requirements or acted outside the scope of its delegated authority when implementing Obamacare.”
But it’s significant when an ardent Obamacare advocate admits it.
“It is more notable when a prominent defender of the Obama administration acknowledges that the administration has colored outside the lines, and not always with good justification,” Adler wrote. “So those interested in the Affordable Care Act and the administrative law should give Nicholas Bagley’s new paper on ‘Legal Limits and the Implementation of the Affordable Care Act’ a careful read. The paper’s still in draft form – and in my view bends over backward to provide the most charitable read of the administration’s actions – but still concludes that the administration has violated the law repeatedly in implementing the ACA, even if not quite as often as some administration critics have claimed.”
Bagley wrote: “On occasion … the administration has strayed beyond legal limits. Two episodes raise especially serious legal concerns: the administrative delays and the decision to finance cost-sharing reductions out of an appropriation governing tax refunds. In both cases, Republican recalcitrance threatened to undermine the president’s signal achievement. And in both cases, the president appears to have broken the law.”
Regarding the multiple delays announced by Obama during the Obamacare implementation, he wrote, “The delays are … bald efforts to avoid unwanted consequence associated with full implementation of the ACA.”
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He pointed out that Obama made “public announcements of its nonenforcement policies” to “encourage the regulated community to disregard provisions of the ACA.”
Bagley explained that the administration announced numerous delays for various requirements of the law.
“They were conscious decisions to put off the dates on which congressional statutes directed at private actors took effect.”
He noted that even the Obama administrations Office of Legal Counsel had warned the president that he could not “in the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.”
On the issue of cost-sharing subsidies – the additional federal subsidies for those making less than 250 percent of the poverty level – he emphasized they are “essential” to Obamacare.
“Without them, health plans would have to bear the full costs of the cost-sharing reductions that they’re required to make – an estimated $167 billion over 10 years,” he said.
“But there’s a problem,” he continued. “Although the ACA directs the Treasury Secretary to issue cost-sharing payments, it’s black-letter law that ‘a direction to pay without a designation of the source of the funds is not an appropriation.'”
And while Obama asked for the money, Congress refused.
“The administration then quietly determined that it did not need an annual appropriation. It instead concluded [the law] already appropriates the money to pay both premium tax credits and cost-sharing reductions.”
The Obama administration argues that the law was set up as a permanent and ongoing appropriation.
However, Bagley noted, a law “may be construed to make an appropriation out of the Treasury … only if the law specifically states than an appropriation is made.”
“Nothing in the ACA specifically appropriates money for cost-sharing reductions,” Bagley wrote.
In fact, he said, a court case brought by the U.S. House likely will be decided early this year that “could raise a legal cloud over the ACA in the middle of a presidential election.”
Bagley noted that “in the face of committed resistance from a Republican-controlled Congress that wishes to undermine the ACA … the administration may have felt that it had little choice but to find an appropriation where non exists.”
It is, however, a “troubling precedent” for the future, he said.
Further, Bagley warned, “Eventually, too, the courts will lose patience with a presidential practice of dressing up lawbreaking in the garb of law.”
While he noted that Obama followed the law many times in his pursuit of Obamacare, “it’s hard for me to shake the fear that we are entering an era marked by the relentless chipping away at the rule of law.”
“I don’t want to seem alarmist: for now, such chipping away is modest. But it appears poised to become a durable feature of American governance, with consequences I can’t begin to anticipate. … It seems to me that the rule of law is a terrible thing to waste.”
Adler noted: “The Obama administration has repeatedly flouted legal requirements or acted outside the scope of its delegated authority when implementing Obamacare. I’ve argued as much in numerous blog posts, congressional testimony and in a chapter on what I call the ‘Ad Hoc Implementation of Obamacare’ in a new book, ‘Liberty’s Nemesis: The Unchecked Expansion of the State.'”
He said: “It seems to me the administration has strayed from the ACA’s text law when and where it thinks it’s difficult for critics to obtain judicial review, though other explanations are possible, too. In any event, the paper helps further a discussion about the appropriateness of what some consider administrative ‘self-help.’ This is not the first administration to take liberties with a statute when Congress refused to cooperate (see, e.g., what the Bush administration did with the Clean Air Act), and it won’t be the last.
“A real question is whether the Obama administration’s actions with regard to the ACA are an augur of what is to come in the future,” Adler said.
Read more at
http://www.wnd.com/2016/01/pro-obamacare-legal-expert-admits-president-broke-law/#B6XWB5IfJcVKcZqF.99
