Thursday, February 13, 2014

The Lawless Presidency

by Arnold Ahlert

In a move both transparently political and utterly contemptuous of the rule of law, the Obama administration has yet again made changes to the healthcare law. The Treasury Department issued a fact sheet Monday, outlining the new regulations (laughingly referred to as “final”). They now give employers with 50-99 employees until 2016 to comply with ObamaCare’s employer mandate. In addition, employers with 100 or more workers who originally had to cover 95 percent of them to be in compliance will only have to offer coverage to 70 percent of their employees next year, transitioning to the original percentage by 2016. In short, a law written and passed by Congress and signed by the president is becoming whatever the Obama administration wants it to be.
And as usual, the administration wants it both ways. Even as it disputes the idea that ObamaCare is causing many companies to eliminate employees as a means of getting below the 50-worker threshold when the mandate kicks in, Treasury officials warned that businesses must “certify” they are not eliminating workers to avoid that mandate. Employers will self-attest to this reality on their tax forms under penalty of perjury. 

In other words the IRS, where not even a “smidgen” of corruption has occurred according to President Obama, could end up as the ultimate arbiter of any employer-employee disputes regarding reasons for an employee’s termination. And a decision in the employee’s favor could yield a one-two punch where a business owner is both cited for perjury and required to implement the business mandate from which he was previously exempt.

Yet the most unseemly part of this latest exercise was illuminated by House Speaker John Boehner (R-OH) ”Once again, the president is giving a break to corporations while individuals and families are still stuck under the mandates of his health care law. And, once again, the president is rewriting law on a whim,” he said in a statement. “If the administration doesn’t believe employers can manage the burden of the law, how can struggling families be expected to?” 

The answer is obvious. Due in large part to a Republican Party that has demonstrated little appetite for challenging the capriciousness of the Obama administration, it has long grown comfortable with the idea that the executive can assume the role of ultimate lawgiver. Thus it was completely unsurprising that J. Mark Iwry, deputy assistant Treasury secretary for health policy, contended the administration had broad “authority to grant transition relief,” citing a section of the Internal Revenue Code that directs the Treasury secretary to “prescribe all needful rules and regulations for the enforcement” of tax obligations. 

Iwry further noted that such authority has often been used to delay laws that engender “unreasonable administrative burdens or costs” to taxpayers. Thus, despite the reality that the law itself clearly states that employers with “at least 50 full-time employees” must provide “minimum essential coverage” in the “months beginning after December 31, 2013” or pay a fine, the administration has determined it can do pretty much as it pleases.

Based on the 2011 Census figures compiled by the Small Business Administration, the rule changes affect 81.9 million employees. Approximately 7.9 million of them work for companies with 50-99 employees that comprise 2 percent of U.S. businesses and 7 percent of workers. The other 74 million work for firms employing 100 or more people that also comprise 2 percent of U.S. businesses. 

Unsurprisingly, administration officials focused on the percentages rather than the raw numbers in order to make the case that the change in the law is relatively minor. Yet fewer workers getting insurance through their employers is likely to push more Americans onto the exchanges, where they will receive subsidized coverage underwritten by the taxpayers.

Multiple news sources contend the reason the administration implemented the changes was due to fierce criticism from the business community. Some members of that community applauded the changes. ”I’m pretty pleasantly astounded by what I’ve seen on first read here,” said Neil Trautwein, a vice president and lobbyist with the National Retail Federation. “This is really the antithesis of the botched rollout of the exchanges, and I think they have tried mightily to smooth the impact of the penalty-mandate structure on the business community.” Michelle Neblett, director of labor and workforce policy for the National Restaurant Association, echoed that sentiment, contending that restaurants ”certainly will appreciate the additional time.”

On the other hand, it is virtually impossible to believe that ObamaCare’s potentially devastating effects on Democrats running for office in 2014 wasn’t the primary motivation behind the change. A Washington Post-ABC poll taken in November revealed a whopping 63 percent of voters disapproved of the way Obama was implementing the healthcare law compared to only 33 percent who approved. Yet even more critically for Democrats, 39 percent of those voters say they would be more likely to oppose a candidate for Congress who supports the law, compared to only 23 percent who would back such a candidate.

Adding fuel to that fire, Politico reports that the White House and Senate Democrats are basing their election strategy around the reality that Democrats engaged in competitive races don’t want the president anywhere near their campaigns, even as they want to maintain access to party campaign resources. Politico claims to have spoken with “nearly every incumbent up for reelection and aspiring Democratic Senate candidates across the country, but only a handful gave an unequivocal ‘yes’ when asked whether they wanted Obama to come campaign with them.”

Neither the poll nor the Politico report reflect another inconvenient reality that will now be attaching itself to Democrats who have long championed themselves as the party of “fairness,” and most recently, as the party that will be campaigning on “income inequality” for the mid-term election. In addition to all of the other burdens ObamaCare places on that campaigning, Democrats will have to explain why individual Americans and their families have been subjected to the law as written, while the corporations and businesses Democrats routinely vilify when it suits their purposes get an additional extension on top of the one they already received. Such a gargantuan level of hypocrisy may be dismissed by hardcore Democrat supporters. The rest of the electorate will be far less inclined to do the same.

The Wall Street Journal is already leading the charge. The Obama administration’s “cavalier notions about law enforcement are especially notable here for their bias for corporations over people…Liberals say the law isn’t harming jobs or economic growth, but everything this White House does screams the opposite,” the paper states.

Furthermore, despite the aforementioned fact sheet’s use of the word “final” to describe the latest changes, nothing could be further from the truth. A report released Monday by Sam Batkins, director of regulatory policy at American Action Forum, reveals that the White House’s Office of Information and Regulatory Affairs (OIRA) is reviewing “an avalanche” of new rules that pertain to ObamaCare. “In total, these 28 paperwork burdens total more than 45.7 million burden hours. For perspective, it would take more than 22,800 employees working full-time to complete the new paperwork (assuming 2,000 employee hours annually),” the report explains. The most “infamous” rule, the individual mandate tax, “would impose more than 7.5 million paperwork burden hours on American taxpayers,” the report adds. That burden adds up to far more time preparing one’s taxes–or far more money paying someone else to do it.

Other revelations about the law came out Monday and yesterday. They range from the pedantic, as in an additional tax on gym memberships, to the deadly serious, such as the possibility that hundreds of Louisianans with HIV/AIDS may be removed from the insurance plan they selected. That possibility revolves around a dispute regarding premium subsidies and the interpretation of federal regulations designed to prevent fraud. In September, the Centers for Medicare and Medicaid Services (CMS) informed insurers that funds available from third party payers such as those under the 1990 Ryan White Act, used by people with HIV/AIDS to pay their premiums, could be used to “cover the cost of private health insurance premiums, deductibles, and co-payments” for ObamaCare.

In November, CMS did an about-face, warning healthcare providers it has “significant concerns” about fraud with regard to using third party payments for plans.

CMS now claims their guidance excludes Ryan White funds. But Blue Cross and Blue Shield (BCBS) of Louisiana is rejecting checks from the fund, claiming the CMS guidelines require them to do so. Critics contend that BCBS is being discriminatory, a charge the insurer denied. ”We welcome all Louisiana residents who chose Blue Cross and Blue Shield of Louisiana,” said BCBS spokesman John Maginnis. The dispute will likely be ironed out, but it adds to the overall uncertainty associated with the healthcare law nonetheless.

It is an uncertainty not only tolerated, but fostered by President Obama and his administration. By December, Obama had made 14 unilateral changes to the healthcare law without consulting Congress. National Journal columnist Ron Fournier, an ObamaCare defender, put the number much higher “according to Fox News,” but far more importantly, the scales appeared to be falling from his eyes. “Advocates for a strong executive branch, including me, have given the White House a pass on its rule-making authority, because implementing such a complicated law requires flexibility,” he writes. “But the law may be getting stretched to the point of breaking. Think of the ACA as a game of Jenga: Adjust one piece and the rest are affected; adjust too many and it falls.”

Columnist Charles Krauthammer rejects the notion of a strong executive branch,  especially one that has been”wantonly changing the law lawlessly” for no other reason than to ”minimize the impact leading up to an election.” That’s what they do in banana republics, he asserts. Ironically, one hour after the changes in ObamaCare were announced, Obama joked to French President Francois Hollande that the good thing about being president is that “I can do whatever I want.”

A lot of Americans aren’t laughing. They see a level of contempt this administration has for the rule of law that extends far beyond the borders of ObamaCare. The president has also unilaterally enacted immigration law, attempted to make recess appointments when the Senate was not in recess, gutted the work requirement in the 1996 welfare reform act, and is moving forward with plans effectively eliminating the building of new coal plants. And he has promised to move forward — without Congress if necessary — to enact his agenda.

Right now such actions satisfy an American left whose credibility has been reduced to defending the equivalent loss of 2.5 million jobs due to ObamaCare as “freedom” from “job lock.” That they conspicuously omit the fact that other Americans must work to subsidize that freedom is a testament to the left’s determination to enact their agenda by any means necessary. Thus, a banana republic is fine with them, as long as they control the levers of power.

Yet it is precisely those levers of power that appear most vulnerable heading into the 2014 mid-term election. Despite all the support Democrats will get from a hopelessly compromised mainstream media, there is no reconciling their belief in the “wonderfulness” of ObamaCare with the reality that every postponement of the law’s mandates reveals exactly the opposite. “It’s getting difficult and slinking toward impossible to defend the Affordable Care Act,” writes Fournier. For far too many Americans, impossible is already here.

Arnold Ahlert


Copyright - Original materials copyright (c) by the authors.

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