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 delays of the employer mandate and of 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.