Politics

Is Another Politically Motivated Delay of Obamacare On the Way?

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Whitehouse.gov

Remember, Obamacare is the law of the land. And there's absolutely no messing with it. Unless you are the Obama administration, and it's an election year.

In The Hill, Elise Viebeck reports  on the latest delay anticipated for the health care legislation: 

The Obama administration is set to announce another major delay in implementing the Affordable Care Act, easing election pressure on Democrats.

As early as this week, according to two sources, the White House will announce a new directive allowing insurers to continue offering health plans that do not meet ObamaCare's minimum coverage requirements.

The explanation for the rumored delay is purely political. There's not even a pretense of a policy justification:

Prolonging the "keep your plan" fix will avoid another wave of health policy cancellations otherwise expected this fall.

The cancellations would have created a firestorm for Democratic candidates in the last, crucial weeks before Election Day.

The White House is intent on protecting its allies in the Senate, where Democrats face a battle to keep control of the chamber.

Is there a sound legal basis for such a delay? If so, we've yet to hear about it. 

This would be the second tweak to the health law in less than a week. Last Friday, presumably after noticing that many of the state-run health insurance portals created under the law aren't working so well, the administration announced that in states with clunky exchanges, individuals who enroll in health coverage outside those exchanges would still be eligible for the law's tax credits. 

That fix is also fairly clearly aimed at helping Democratic allies in governor's offices. From an AP report:

Although the new policy fix is available to any state, Republican governors basically defaulted to federal control of online sign-ups in their states. Those who stand to benefit the most are Democratic governors who plunged ahead and ran into problems. Some are facing sharp criticism at home, from both sides of the political aisle.

This tweak is also of dubious legality — by which I mean, the plain text of the law flatly prohibits it. Section 1401 of the text of the Patient Protection and Affordable Care Act says that the law's subsidies shall be available "through an Exchange established by the State under Section 1311" of the law. The administration has already reinterpreted this section once, changing it to mean an exchange established by a state or the federal government. It is now intent on entirely ignoring the requirement that the subsidies be offered through an exchange. 

Both of these administrative edits follow the further delay of the law's employer mandate requirements that the administration announced in February. (For the record, that change was also illegal.)

None of this was supposed to happen! At the end of December, as Obamacare's coverage provisions were about to kick in, Kathleen Sebelius said that despite the rocky launch, things were working smoothly with the law, and she did not any anticipate any additional delays. As is always the case with Obamacare, everything's working fine, until it isn't.