Remember When Signing Statements Were A Gross Abuse of Executive Power?

November 19th, 2013

As opposed to unilaterally making law through executive fiat?

Another problem with the President’s latest “fix” is that it does more than pull back enforcement of the law’s requirements.  It also seeks to impose new obligations on private insurers. Specifically the new policy conditions the exercise of enforcement discretion on private insurers agreeing to a series of disclosures to those who might wish to renew their policies for an additional year.  Specifically, as detailed in this guidance letter, insurers wishing to renew their policies must provide their customers with a notice explaining that the relevant policies fail to comply with the PPACA’s requirements, that other more comprehensive policies are available, and how such policies may be obtained.  Whether or not requiring such disclosure is a good idea, I am aware of no provision in the law that authorizes such a requirement and, more importantly, I do not see how the Administration can impose such a requirement through an exercise of its enforcement discretion outlined in a press conference and a guidance letter.  Put another way, if the Administration wishes to impose such an obligation on insurers, it could conduct a rulemaking and promulgate regulations. What it cannot do is simply announce that it will forbear enforcing the law provided that regulated entities “voluntarily” agree to a new, unauthorized set of regulatory requirements.


My how the times have changed.

I am patiently waiting for the ABA to convene a commission on executive power in the age of Obama.