How the White House’s Politically Motivated Obamacare Delays Undermine the Health Law’s Stability

Most of the
criticism of President Obama’s numerous executive tweaks to the
health care law—including the delay of the employer mandate and
demands that health plans comply with certain requirements—has come
from people who oppose Obamacare.

But in an article for
The New England Journal of Medicine, Nicholas
Bagley, a professor at the University of Michigan Law School who is
a supporter of the Affordable Care Act, warns that some of the
administration’s alterations of the law are not just legally
dubious. They set a precedent that could stymie the law’s larger
goals in the long run:

In short, the delays appear to exceed the traditional scope of
the President’s enforcement discretion. To some extent, the
President’s willingness to press against legal boundaries is an
understandable and even predictable response to the difficulties of
implementing a complex statute in a toxic and highly polarized
political environment. Congress’s unwillingness to work
constructively with the White House to tweak the ACA has increased
the pressure on the administration to move assertively to manage
the challenges that inevitably arise in rolling out a massive—and
critically important—federal program.

The delays nonetheless set a troubling precedent. They are
unlikely to be challenged in court—no one has standing to sue over
the employer-mandate delays, and no insurer has thought it
worthwhile to challenge the “like it, keep it” fix. But a future
administration that is less sympathetic to the ACA could invoke the
delays as precedent for declining to enforce other provisions that
it dislikes, including provisions that are essential to the proper
functioning of the law. The delays could therefore undermine the
very statute they were meant to protect—and perhaps imperil the
ACA’s effort to extend coverage to tens of millions of people.

I have
argued in the past that the administration’s delays have
prioritized short-term political gain at the expense of the law’s
policy design. Bagley’s piece suggests that the delays have also
made the health law more susceptible to attacks from future
administrations who do not share the Obama administration’s
commitment to the law or its goals.