[Jmod hat, Cagney voice]
This is GQ, right? And it stays GQ, get me?
[/Jmod, Cagney voice]
Somewhere not long ago I OP’d a thread on how/under what law, history, etc. the current Justice Department could “change” Federal drug law (lowering strictures on marijuana sentencing); the brunt of commentary came down to “it’s prosecutorial discretion,” it’s done all the time.
But here, what gives? The Obamacare (ACA) Legislation says x, no grandfathering after a certain time, and now the Chief Executive of legislation, as it were, says, let’s change that part and add a year.
Now, if President Obama–or, more to the point here–the legislators who write the law, had thought of that as being better they a) of course could have written it or b) written something like “if something and something happens/doesn’t happen, then kick it a year.” Laws suck all the time, even to those who promulgate them, but then you’re stuck with c) write a new one.
President could say, Income Tax Day is put off six months, or, budget shortfall, it’s coming two months earlier. God knows what Presidents could say. But they’re not allowed to, according to the Constitution. No?
I’m asking for precedent. If discussion broadens a bit to define topic, fine. I’m not talking war-time or national emergency Executive Branch actions. For this OP, I don’t give a shit about Obamacare per se. Pick a law, pick a President.
I just remembered and was just told: remembered, the same OP question applies equally to another action of President Obama and the ACA: the year-long delay for private employers of over 50 people to provide health insurance; told, I should look at Youngstown Sheet & Tube v. Sawyer.
The President cannot, and does not try to, change “Federal drug law”. That is a matter of the legislature. What he can do, however, is to decide how to execute federal drug law. In areas where the law leaves discretion to the prosecuting authorities (which are part of the executive branch) whether to take or not take action, and which action to take, it is within the powers of the chief executive to issue instructions to the executive authorities under his control how to exercise this discretion. The law itself remains unchanged, however.
Of course, you may take the view that this violates the President’s constitutional duty to take care that the laws be faithfully executed. On the other hand, however, the law cannot prescribe in detail which action to take or not to take under all possible circumstances; there must always be some executive leeway simply because the legislature cannot foresee all possible future cases. As long as the instruction about the exercise of discretion remains within the limits of this leeway, there is nothing to be said against this practice from a legal point of view.
The ACA has lots and lots and LOTS of provisions where it says “At the discretion of the Secretary of Health.” The President gets to tell the Secretary of Health how he wants this discretion used.
The law itself allows discretion to be used in its implementation. Nice and flexible.
The Justice Department does not have nearly the resources to prosecute every crime that they have probable cause to believe has been committed. The prosecutors choose which ones they believe are the most urgent to prosecute and allocate their budgets accordingly. The White House will set some broad policy guidelines, but traditionally does not interfere at all in individual cases absent some international angle, in which case the State Department consults with the Justice Department. The State Department is given a lot of deference and respect, but the final decisions are with Justice. I’ve never been an mj user, yet it has always seemed to me to be a bit preposterous spilling into the very absurd the resources that various law enforcement agencies put into chasing people for minor mj offenses.
The law does not allow Presidential discretion to be used to decide that insurance plans that do not include “essential health benefits” are legal to sell.
So, taking into account (1) and (2) above, Obama cannot, by law, make it legal for insurance companies to sell the insurance plans that he so benevolently agreed to “allow”. It is still illegal to sell them, he just agreed not to prosecute it. But most (all?) big companies have rules that do not allow them to knowingly break any law, whether it is being prosecuted or not.
This gets tricky when the legal issue is between private parties. Suppose I have a policy from the individual market that is not compliant with the ACA’s minimum requirements for 2014. Based on the President’s announcement that the administration will not enforce those requirements for another year, the company opts not to cancel me and I keep my policy.
Now, suppose next year the company denies me coverage for something not covered by my policy, but that would have been covered if my policy was compliant with the 2014 requirements (that are not being enforced). I sue my insurer to force it to comply with the ACA and pay for my procedure. Can the insurer defend a contract that is illegal on its face, by citing to the administration’s lack of enforcement? I have no idea.
The definition of “essential health benefits” in another section, to which the provision you cite refers, explicitly gives power to the Secretary of Health and Human Services the power to define what “essential health benefits” are. So there is executive discretion provided for in the text of the statute, and the President, being the chief executive, can give instructions to the Secretary as to what the definition of “essential health benefits” should look like.
(b)(1)the Secretary shall define the essential health benefits, except that such benefits shall include at least the following general categories and the items and services covered within the categories:
(A) Ambulatory patient services.
(B) Emergency services.
(C) Hospitalization.
(D) Maternity and newborn care.
As I explained in that same post, with a cite, it allows the Secretary to define MORE benefits, but the base is set in the law and he cannot define them down (like the President’s directive has done).
Read it again. The Secretary is also given discretion to define the precise contents of the general categories to the extent that the statutory text leaves leeway as to what is encompassed within the general categories.