Constitutional Law

Is Obama's health-law fix constitutional?

President Obama’s decision to delay enforcement of the health-care law to allow consumers to keep their cancelled policies has raised the question: Is his action constitutional?

Some legal observers think the answer is no, report the Wall Street Journal Law Blog (sub. req.) and the Wall Street Journal (sub. req.). At issue is whether Obama can delay new requirements for policies beginning in 2014 that resulted in cancellations for insurance that didn’t measure up. A trade group for insurers has objected to Obama’s action, saying it could destabilize the market and spur higher premiums.

The Obama administration cites its inherent authority to exercise discretion to enforce statutes in a way that achieves statutory goals during a period of transition, according to the Washington Post’s Plum Line blog. In a statement to the blog, the Department of Health and Human Services cites the 1985 case, Heckler v. Chaney.

In that case, death-row inmates sought to force the Food and Drug Administration to block lethal-injection drugs. The prisoners had argued the FDA was required to conduct a review. But the Supreme Court, in an opinion by then-Justice William H. Rehnquist, ruled that the agency could refuse to act, the Wall Street Journal explains. “When an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect,” Rehnquist wrote.

But in another case, the U.S. Supreme Court found that another agency—the Environmental Protection Agency—could not decline to exercise its authority to regulate greenhouse gases. “While the president has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws,” Justice John Paul Stevens wrote in Massachusetts v. EPA.

An initial problem for opponents of Obama’s health-law fix could be standing. Insurance companies may be best suited to be able to demonstrate the concrete injury needed to achieve standing, according to George Mason University law professor Ilya Somin. The companies would have to show an economic loss, Somin told the Law Blog. “It would be difficult for them to get standing but perhaps not impossible,” he said.

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