Is This the End of Obamacare’s Individual Mandate? Administration Continues to Test the Constitution

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Posted by Jorge Marin on Thursday, March 13th, 2014, 3:09 PM PERMALINK


A recent rule change by the HHS may signal the beginning of the end of the controversial Individual Mandate. The Wall Street Journal reports

“That seven-page technical bulletin includes a paragraph and footnote that casually mention that a rule in a separate December 2013 bulletin would be extended for two more years, until 2016. Lo and behold, it turns out this second rule, which was supposed to last for only a year, allows Americans whose coverage was cancelled to opt out of the mandate altogether.”

It seems like the administration is ramping up its constitutionally dubious delays. Though the current administration has gone through great lengths to assure the American people of the benefits of the Affordable Care Act, their recent slew of delays and exemptions suggest that the HHS is itself unsure of how to implement the law. The possible opt out appears to work in a criteria not much stricter than the honor system, people can exempt themselves if they

“believe that the plan options available in the [ObamaCare] Marketplace in your area are more expensive than your cancelled health insurance policy" or "you consider other available policies unaffordable."

While it is still unclear how this rule change would be implemented, and whether it would constitute a practical delay in the individual mandate, the apparent lack of coherent policy does not speak well for the health insurance overhaul. There is also speculation that a possible Mandate delay might be linked to the dismal insurance registration estimates.

“The answers are the implementation fiasco and politics. HHS revealed Tuesday that only 940,000 people signed up for an ObamaCare plan in February, bringing the total to about 4.2 million, well below the original 5.7 million projection. The predicted "surge" of young beneficiaries isn't materializing even as the end-of-March deadline approaches, and enrollment decelerated in February.”

Meanwhile HHS Secretary Kathleen Sebelius is emphatic in her denial of an individual mandate delay. The Hill reports that during a hearing at the House Ways and Means Committee, Rep. Kevin Brady (R-Texas) questioned the possibility of a delay:

“Given the problems caused by ObamaCare's faulty website last year, Brady asked Sebelius directly if delays to the individual mandate or enrollment deadline would be next.”

“No, sir,” Sebelius responded.”

While she seems adamant in her defense of deadlines and rules, the fact remains that Obamacare’s implementation has suffered delays, setbacks, exemptions, and waivers far exceeding the parameters of the original law. Simply put, there is a strong case to be made that a president in such blatant disregard of the law is acting unconstitutionally. Even though the Secretary is adamant in her defense of HHS policy, Republican lawmakers already seem to smell blood in the water

In other words, the administration is moving in a quasi-repeal in which the mandate stands, but anyone can opt out of it by checking a box. What remains even less clear than the mechanisms of the opt-out is the economic health of the entire house of cards that is Obamacare. Without the individual mandate (harmful as it is) there is no way to ensure the survivability of the American Health Care Industry.

There is at least one benefit from this fracas: at least Representative Pelosi is starting to find out what is in the bill which cost her the House.

Photo Credit: Mr.TinDC

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