What is the rationale for exempting congress/executive from ACA?

Discussion in 'Too Hot for Swamp Gas' started by CHFG8R, Oct 2, 2013.

  1. FlyingGatorII

    FlyingGatorII Premium Member

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    We can disagree there as it is a matter of semantics. In my mind he changed the law to benefit Congress and in doing so exempted them from the negative financial effects others will get no relief from.
  2. GatorBen

    GatorBen Well-Known Member

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    They're not actually offering FEHB, Congress still has to buy on the exchanges, but they are getting the pre-tax employer contribution that would have been going to FEHB as a contribution to their exchange plan premiums.

    The other issues? As a generalization, mostly legal as prosecutorial discretion.

    This is a slightly different legal issue, and is essentially a question of admin law about whether the definitions used by OPM are impermissible under the guidance contained in the law implemented.
  3. FlyingGatorII

    FlyingGatorII Premium Member

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    So you know more than George Will on this Ben? He's a pretty scholarly fellow not known to go out on a extreme limb..

    Obama’s unconstitutional steps worse than Nixon’s
    By George F. Will,August 14, 2013

    President Obama’s increasingly grandiose claims for presidential power are inversely proportional to his shriveling presidency. Desperation fuels arrogance as, barely 200 days into the 1,462 days of his second term, his pantry of excuses for failure is bare, his domestic agenda is nonexistent and his foreign policy of empty rhetorical deadlines and red lines is floundering. And at last week’s news conference he offered inconvenience as a justification for illegality.

    Explaining his decision to unilaterally rewrite the Affordable Care Act (ACA), he said: “I didn’t simply choose to” ignore the statutory requirement for beginning in 2014 the employer mandate to provide employees with health care. No, “this was in consultation with businesses.”

    He continued: “In a normal political environment, it would have been easier for me to simply call up the speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law. . . . It looks like there may be some better ways to do this, let’s make a technical change to the law. That would be the normal thing that I would prefer to do. But we’re not in a normal atmosphere around here when it comes to Obamacare. We did have the executive authority to do so, and we did so.”

    Serving as props in the scripted charade of White House news conferences, journalists did not ask the pertinent question: “Where does the Constitution confer upon presidents the ‘executive authority’ to ignore the separation of powers by revising laws?” The question could have elicited an Obama rarity: brevity. Because there is no such authority.

    Obama’s explanation began with an irrelevancy. He consulted with businesses before disregarding his constitutional duty to “take care that the laws be faithfully executed.” That duty does not lapse when a president decides Washington’s “political environment” is not “normal.”

    When was it “normal”? The 1850s? The 1950s? Washington has been the nation’s capital for 213 years; Obama has been here less than nine. Even if he understood “normal” political environments here, the Constitution is not suspended when a president decides the “environment” is abnormal.

    Neither does the Constitution confer on presidents the power to rewrite laws if they decide the change is a “tweak” not involving the law’s “essence.” Anyway, the employer mandate is essential to the ACA.

    Twenty-three days before his news conference, the House voted 264 to 161, with 35 Democrats in the majority, for the rule of law — for, that is, the Authority for Mandate Delay Act. It would have done lawfully what Obama did by ukase. He threatened to veto this use of legislation to alter a law. The White House called it “unnecessary,” presumably because he has an uncircumscribed “executive authority” to alter laws.

    In a 1977 interview with Richard Nixon, David Frost asked: “Would you say that there are certain situations . . . where the president can decide that it’s in the best interests of the nation . . . and do something illegal?”

    Nixon: “Well, when the president does it, that means it is not illegal.”

    Frost: “By definition.”

    Nixon: “Exactly, exactly.”

    Nixon’s claim, although constitutionally grotesque, was less so than the claim implicit in Obama’s actions regarding the ACA. Nixon’s claim was confined to matters of national security or (he said to Frost) “a threat to internal peace and order of significant magnitude.” Obama’s audacity is more spacious; it encompasses a right to disregard any portion of any law pertaining to any subject at any time when the political “environment” is difficult.

    Obama should be embarrassed that, by ignoring the legal requirement concerning the employer mandate, he has validated critics who say the ACA cannot be implemented as written. What does not embarrass him is his complicity in effectively rewriting the ACA for the financial advantage of self-dealing members of Congress and their staffs.

    The ACA says members of Congress (annual salaries: $174,000) and their staffs (thousands making more than $100,000) must participate in the law’s insurance exchanges. It does not say that when this change goes into effect, the current federal subsidy for this affluent cohort — up to 75 percent of the premium’s cost, perhaps $10,000 for families — should be unchanged.

    When Congress awakened to what it enacted, it panicked: This could cause a flight of talent, making Congress less wonderful. So Obama directed the Office of Personnel Management, which has no power to do this, to authorize for the political class special subsidies unavailable for less privileged and less affluent citizens.

    If the president does it, it’s legal? “Exactly, exactly.”
  4. g8rjd

    g8rjd Well-Known Member

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    George Will is, indeed, an accomplished political scholar and journalist, but, actually, Ben might have a bit better of a handle on the intricacies of federal administrative law than Mr. Will. Also, Mr. Will seems to be focused on the President's explanation, not the federal regulations as related to the language of the ACA, which is where the rubber meets the road in administrative law.

    So, I'm not sayin', I'm just sayin'.
  5. FlyingGatorII

    FlyingGatorII Premium Member

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    True but he clearly points out that Obama, nor any President, has the authority under the constitution to do change laws at will. It's why we have separations of power. Do you disagree?

    Serving as props in the scripted charade of White House news conferences, journalists did not ask the pertinent question: “Where does the Constitution confer upon presidents the ‘executive authority’ to ignore the separation of powers by revising laws?” The question could have elicited an Obama rarity: brevity. Because there is no such authority.
  6. wgbgator

    wgbgator Sub-optimal Poster Premium Member

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    OPM had to rule since the Grassley amendment didnt specify anything, whether it was left out in a drafting error or not. The amendment's author says the ruling was in line with the intent.

    http://blogs.rollcall.com/wgdb/grassley-frustrated-by-fight-over-his-health-care-amendment/
  7. GatorBen

    GatorBen Well-Known Member

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    Well, lets disregard that entire discussion of the employer mandate, since it's not what we were discussing (and, as I noted in another thread, I actually disagree with the decision to delay it as a policy matter).

    So that leaves us back at the OPM rules for Congress's coverage.

    Note that I didn't opine as to whether what the administration did was legally valid or not (frankly I don't feel like digging through the statutes and CFR to compare definitions), I said the question isn't whether it's unconstitutional or not. And it isn't.

    You're falling into the trap that has seemingly taken over Washington of insisting that anything in question is "unconstitutional," when the actual question concerns just everyday legality. The actual question here regards the definition OPM ascribed to one or two words in the statute that were necessary to craft its rule. So the challenge would be to the legal validity of the rule, based on the argument that the rule in question exceeded the statutory authority granted to OPM. It's not a challenge to constitutionality.
  8. g8rjd

    g8rjd Well-Known Member

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    Like I said, in federal administrative law, the language of the law as compared to the language of the regulation is where the rubber meets the road. If the agency's regulation is a reasonable interpretation of the language passed by Congress, that is pretty much the ballgame.

    Will is focused on Obama's public presentations related to the issue. For purpose of whether a regulation is a reasonable interpretation or not, what Obama says and $5 will get you a latte at Starbucks. If the executive agency (which is deemed the subject matter expert on review) issues a rule that is a reasonable interpretation of the language used by Congress, for which they are accorded considerable deference, then there isn't an issue. So long as the agency's interpretation is reasonable, then it is not "revising laws." And, I can tell you, "reasonable" in administrative law, particularly when Congress leaves any room for ambiguity, is a very broad brush.

    Ben can probably address the specifics far better than I can. (But, as you can see ^^^ has apparently chosen not to.)
    Last edited: Oct 2, 2013
  9. GatorBen

    GatorBen Well-Known Member

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    Fine. :grin:

    Basically, this issue would take you into the Chevron deference test. When an administrative agency is interpreting a statute that they are charged with administering, there is a two-step test to determine whether the interpretation that they gave to the statute is valid or not.

    The first step is to determine whether the statute itself clearly addresses the question at issue. If it does, that's the end of the analysis, the agency must use the interpretation that is clear from the statute. If the statute is either silent or ambiguous on the question at issue, however, the reviewing court would move on to the second step of Chevron.

    The second step is to determine whether the agency's interpretation is a "permissible" one. This does not mean that it has to be the best interpretation, or that it has to be the interpretation that the court would have picked if it was interpreting the statute itself. Indeed the court has to uphold the agency's interpretation, even if they are firmly convinced that it isn't the best interpretation, as long as the interpretation the agency gave the statute is a "permissible" one. The deference to the agency here is quite wide, and a court striking down an interpretation at step two of the Chevron analysis is exceedingly rare. Because of the relative rarity of striking at step two, what exactly the analysis for determining if an interpretation is "permissible" or not is not terribly well defined, but it sometimes takes the form of looking at whether the agency used a "reasoned process" to arrive at their interpretation. But as a general matter, an agency interpretation of an ambiguous statute will be found permissible far, far more often than not.
  10. FlyingGatorII

    FlyingGatorII Premium Member

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    Don't think I am falling into that trap as I don't constantly post about Obama's disregard for the constitution if it doesn't back his goals. I am flabbergasted to learn that something this big could just be changed by him, especially when the law itself is the most controversial in recent history. Neither you or G8rjrd seem concerned about that which is concerning to me anyway. My head hurts after trying to understand all this! No wonder Pelosi wanted to vote on it before she knew what was in it...she didn't want the headache and knew Obama would change whatever he wanted later anyway!
  11. egator1245

    egator1245 Premium Member

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    So you and Ben are saying Obama and the dems hoodwinked us?
  12. g8rjd

    g8rjd Well-Known Member

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    No. I'm saying details and intricacies of federal administrative law is not and never has been any party's media talking points.
  13. GatorBen

    GatorBen Well-Known Member

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    They "hoodwinked" you by interpreting the phrase "health care plan" for the purpose of OPM rules governing the purchase of insurance by Congressional employees?

    This entire "issue" (if you can even call it that) is theater being played out for political gain. It arose because of a throw-in amendment that no one paid a bit of attention to at the time regarding how Congressional employees are insured. Its fiscal impact, even if the administration is 100% wrong about it, is limited to whatever the income taxes that would be otherwise applicable on the employer contribution to congressional employee's health insurance are (an infinitesimally small amount compared to really anything else in the bill). And it is still forcing members of Congress to buy insurance on the exchanges, which even the person who offered the amendment says is all that was intended.

    But sure, the general public's complete lack of understanding of federal administrative law constituted a "hoodwinking." The exact same way that I guess it does in every single other law ever to involve an adminsitrative agency.
  14. reformedgator

    reformedgator Premium Member

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    Ouch! That has to sting.

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