This is frankly scandalous:
If you've been reading all the Obamacare stories lately, you might get the impression that the administration has just realized it will not be able to implement the massive health reform as designed.
It has known for months.
As far back as March, a top IT official at the Department of Health and Human Services said the department's current ambition for the law's new online insurance marketplaces was that they not be "a Third-World experience." Several provisions had already been abandoned in an effort to simplify the administration's task and maximize the chances that the new systems would be ready to go live in October, when customers are supposed to start signing up for insurance.
In April, several consultants focusing on the new online marketplaces, known as exchanges, told National Journal that the idealized, seamless user experience initially envisioned under the Affordable Care Act was no longer possible, as the administration axed non-essential provisions that were too complex to implement in time. (Read the story for some examples and commentary.) That focus has intensified lately, as officials announced that they would not be requiring employers to cover their workers next year or states to verify all of their residents' incomes before signing them up for insurance.
So, we have a soon-to-be disaster on our hands. Note the part about not verifying residents' incomes. More on that here:
The White House seems to regard laws as mere suggestions, including the laws it helped to write. On the heels of last week's one-year suspension of the Affordable Care Act's employer mandate to offer insurance to workers, the Administration is now waiving a new batch of its own ObamaCare prescriptions.
These disclosures arrived inside a 606-page catch-all final rule that the Health and Human Services Department published on July 5—a classic Friday news dump, with extra credit for the holiday weekend. HHS now says it will no longer attempt to verify individual eligibility for insurance subsidies and instead will rely on self-reporting, with minimal efforts to verify if the information consumers provide is accurate.
Remember "liar loans," the low- or no-documentation mortgages that took borrowers at their word without checking pay stubs or W-2s? ObamaCare is now on the same honor system, with taxpayers in tow.
People are supposed to receive subsidies only if their employer does not provide federally approved health benefits. Since HHS now won't require business to report those benefits or enforce the standards until 2015, it says it can't ask ObamaCare's "exchange" bureaucracies to certify who qualifies either.
HHS calls this "a slight technical correction" though it is much more than that. The exchanges will not only start dispensing benefits "based on an applicant's attestation" about his employment insurance status. HHS is also handing the exchanges "temporarily expanded discretion to accept an attestation of projected annual household income without further verification."
In other words, anyone can receive subsidies tied to income without judging the income they declare against the income data the Internal Revenue Service collects. This change has nothing to do with the employer mandate, even tangentially. HHS is disowning eligibility quality control because pre-clearance is "not feasible" as a result of "operational barriers" and "a large amount of systems development on both the state and federal side, which cannot occur in time for October 1, 2013."
Since people will not have their incomes verified, they have every reason to lie in order to get subsidies, which may stretch federal expenditures to the limit, and which may prevent those who really need subsidies from getting them. Needless to say, this is a problem.
Meanwhile, former federal judge and current law professor Michael McConnell goes after President Obama for unilaterally suspending the employer mandate provisions of the new health care law:
Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.
This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."
To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.
The Justice Department's Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to "refuse to enforce a statute he opposes for policy reasons."
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
Read the whole thing. Obviously, many of those who made a big deal of George W. Bush's signing statements will have little to nothing to say about this. Heck, they have had little to nothing to say about Barack Obama's signing statements.