Posted: 11:19 am Sunday, November 17th, 2013
By Jamie Dupree
Almost every day in recent weeks, I get a message from a listener or a reader who demands to know how the Obama Administration can make certain changes in the operational details of the President’s health law.
“Unconstitutional!” they often say.
They usually don’t like my answer when I tell them it’s the fault of the Congress.
When it comes to the Obama health law, known officially as the Affordable Care Act, there is ample evidence of how lawmakers granted sweeping powers to the Executive Branch to work out the details of this complicated law.
It’s pretty simple stuff – as the Congress directly instructed the feds to write a variety of rules and regulations.
First, let’s start with the text of the Obama health law. You can find it at http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr.pdf.
I’ll give you a minute. Bring it up in a separate window on your computer screen.
Just search for the word “Secretary.” That will give you 3,267 instances, with things like, “The Secretary shall establish,” or “The Secretary may develop guidelines,” and “the Secretary shall develop standards” and the “Secretary shall, by regulation,” – you get the picture.
Speaking of regulation, a quick search of the document shows 195 instances of the word “regulations” in the health reform law.
But instead of searching for that, search for “regulations.” – with the period.
This gives you 35 examples in the bill where the Congress gives the Executive Branch the power to write rules and regulations for the health law.
Let’s run through a few to give you an idea of just a few of the powers which are given to the feds to implement this law.
1) page 14 – REGULATIONS.—The Secretary shall promulgate regulations to define the dependents to which coverage shall be made available under subsection (a).
This deals with extension of coverage for dependents until a child turns 26 years old – all the details regarding that provision.
2) page 38 – REGULATIONS.—The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).
This section deals with the time frame of open enrollment periods for obtaining insurance – in other words – the feds can set those dates.
So, if the Obama Administration decides that people should have until March 31 of next year to enroll, they can approve that regulation. Or if they want to change it to June 30, the feds can do that, too – without any input from the Congress.
Let’s look at something different, where the Congress in the Obama health law instructs the Secretary of Health and Human Services to do something.
The law contains 109 examples of where the fine print says, “The Secretary shall establish” something – from awarding grants to setting up review committees and establishing various programs.
And there are many more examples in the law, where Congress has set out the basics of what they want done in the bill, and left the nitty-gritty details to the Executive Branch.
That’s why you get thousands and thousands of pages of rules and regulations – and it is what happens on a regular basis in the federal government.
Here is one example – 78 pages of regulations dealing with the health care exchanges, which was issued in late August. Look through it and you will see the great leeway that federal regulators have in implementing laws approved by the Congress.
Last week when the Obama Administration offered the “fix” to deal with canceled insurance policies, officials told reporters on a conference call that they were “using enforcement discretion” to allow for a “transition policy” to ensure the implementation of how insurance policies that don’t meet the minimum coverage standards set out by the feds.
So, next time that you wonder why the feds are doing something on a law passed by the Congress – remember that lawmakers have given the Executive Branch wide powers to implement laws.
In a sense, it is why the Congress has become a bit player in many of these debates; they give the power to the Executive Branch, and then they complain about how it is used – and it’s not just on health care reform.