Obama’s ‘nonenforcement’ approach to the law invites the next president to undo the ACA piece by piece.
The Obama administration is in the habit of selectively enforcing the law. It has justified this practice as an expedient to bypass congressional “dysfunction” and preserve the president’s signature achievement, the Affordable Care Act. Yet that strategy may backfire on both counts. The administration’s nonenforcement gambit promises only to prolong the current legislative stalemate while preparing the way for a broader rollback of the ACA.
The major improvisations with the ACA began with a one-year suspension of the employer mandate in July 2013, based on a vague theory of executive “transitional authority.” Next, the administration granted some existing health plans a temporary dispensation from minimum-coverage requirements in a belated attempt to accommodate Americans who liked their health insurance but, due to new regulations, couldn’t keep it. Most recently, Health and Human Services Secretary Kathleen Sebelius announced that those same Americans can claim a “hardship” exemption from the ACA’s individual mandate, like victims of fire, flood and other misfortunes.
These nonenforcement decisions follow a pattern that the administration marked out in other areas of law. In 2012, for example, the White House exempted a sympathetic class of undocumented residents from provisions of the Immigration and Nationality Act and waived federal welfare-to-work requirements for several states.