Sarah Kliff | Obama keeps changing Obamacare. Is that legal?

When The New York Times asked President Obama about the legal objections raised to the employer mandate delay, he answered with the following.

“I’m not concerned about their opinions,” Obama said of legislators who raised concerns. “Very few of them, by the way, are lawyers, much less constitutional lawyers.”

The Obama administration has made numerous adjustments and tweaks to the Affordable Care Act as the law has come into effect. Two recent decisions – one to delay enforcement of the employer mandate until 2015, and another to allow Congress to continue paying for health benefits – have raised questions about how far that discretion should go, whether the White House has overstepped its executive authority.

“This is one of the perennial questions in administrative law: How much power can you claim from statutory ambiguity?” says Nicholas Bagley, who teaches administrative law at the University of Michigan Law School. “The hard question for those of us trying to ascertain the bounds is how flexible are laws, and how much power do we believe Congress gives to the executive branch?”

The White House can’t simply decide not to set up a law; that much is clear in the constitution, which says the executive branch “shall take care that the laws be faithfully executed.”


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