March 29, 2014
A core competency of Health and Human Services Secretary Kathleen Sebelius is issuing false assurances.
An administration about-face has left the Cabinet official looking like the Baghdad Bob of American health insurance. When Rep. Kevin Brady, R-Texas, asked her at a hearing two weeks ago whether the administration would extend the Obamacare enrollment period beyond March 31, she responded with a crisp and direct: “No, sir.”
To the uninitiated, that sounded like an unmistakable denial of any intention to delay the enrollment period. The uninitiated were sadly misled.
The secretary subsequently referred in her testimony to a delayed enrollment period for people who were unable to enroll “through no fault of their own.” It turns out that the administration’s definition of these frustrated would-be enrollees includes … well, everyone.
The Washington Post reports that the administration will rely on the “honor system” to determine if people enrolling past the deadline are hardship cases, with no attempt to check if they started the enrollment process before the deadline or if they are telling the truth.
My alma mater, the University of Virginia, relies on the honor system. The penalty for a violation is expulsion. The penalty for violating the Obamacare honor system is nonexistent.
A few weeks ago, a spokeswoman for the Centers for Medicare and Medicaid Services, which runs HealthCare.gov, told reporters “we don’t actually have the statutory authority to extend the open enrollment period in 2014.”
As if that would be an obstacle. The enrollment extension is in the same spirit as the administration’s partial enactment in 2012 of the DREAM Act through executive fiat — after President Barack Obama said in 2011 that he didn’t have the authority for such a change.
It is a testament to the Obama administration’s audacity that it doesn’t just defy the critics’ view of its lawful authority, it defies its own view of its lawful authority.
The House Committee on Oversight and Government Reform captured the administration’s high regard for legal niceties in an interview with Mark Mazur, the Treasury official whose blog post announced the first delay in the employer mandate:
Q: Did anyone in the Executive Office of the President inquire into the legal authority for the delay?
A: I don’t have any recollection of that.
Q: Did anyone in the Department of the Treasury inquire into the legal authority for the delays?
A: I don’t recall anything along those lines, no.
News of the extension of the enrollment period came on the same day that the U.S. Court of Appeals for the District of Columbia heard arguments in Halbig v. Sebelius, a case involving arguably the most sweeping act of lawlessness in Obamacare’s implementation.
The text of the Affordable Care Act says that only exchanges set up by the states are eligible for subsidies. Since so many states didn’t set up exchanges, the Obama administration decided through an Internal Revenue Service ruling that enrollees on the federal exchanges can also get the subsidies. Its defense in Halbig v. Sebelius is, true to form, that the law doesn’t mean what it says.
Obamacare has been a long workshop in improv tragicomedy. The delays, regulatory rewritings and extensions are always an attempt simply to live for another day, to put off the political pain of cancellations, or rate hikes, or layoffs, and to get just enough traction to make the law viable.
Millions have signed up for the exchanges, but it’s not clear that the demographic mix is right to avoid steep premium increases by insurers in 2015. So far, it looks like young people — essential to making the economics of the exchanges work — aren’t signing up in the necessary numbers. The extension is surely a ploy to squeeze every last “young invincible” out of the current enrollment period, and hope the news for the rates in 2015 isn’t so bad.
And after that? It’s anybody’s guess. All we know for sure is that whatever Kathleen Sebelius says today may not be operative tomorrow.
Rich Lowry can be reached via e-mail: firstname.lastname@example.org