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11/24/2013

Eugene Kontorovich: The Obamacare "Fix" Is Illegal
Michael Ramsey

At Politico, Eugene Kontorovich: The Obamacare "Fix" Is Illegal.  Here is one core claim:

The difference between executive discretion and rewriting a law can be blurry, but the latter can generally be characterized as involving broad policy, while the former involves particular circumstances that arise in the administration of a law. (To put it differently, enforcement discretion goes to how a law is implemented, not if.)

I guess that's right, but I continue to think there is a lot more development needed on the distinction.

There's also this more subtle point:

The second constitutional infirmity relates not to Congress, but the states. Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.