National Review Online
Thursday, October 13, 2022
When implementing his national health-care program,
Barack Obama repeatedly sought to fix the law’s problems through executive
actions that bypassed Congress. President Biden has now gone further. This
week, Biden announced plans to unilaterally rewrite Obamacare — in a
move so extreme that it was explicitly rejected by even the Obama
administration.
At issue is the “family glitch” that has made a subset of
lower-income American families ineligible for Obamacare. The way the law was
written, workers cannot qualify to receive Obamacare subsidies if they are
offered affordable insurance from their employers — “affordable” being defined
as costing less than 9.5 percent of household income. However, as written, the
9.5 percent threshold is calculated based on the cost of insuring only the
individual employee, rather than the cost of coverage for an entire family.
Thus, some families struggling to pay the premiums of employer insurance do not
qualify for Obamacare.
Though it is often portrayed as an accident by Congress,
it makes sense that the law was drafted the way it was. At the time it was
being written, Democrats were pushing back against the idea that Obamacare
posed a threat to employer-based insurance — and if the Congressional Budget
Office assumed more people would have ended up on Obamacare, it could have
driven up the cost of the legislation. That said, even if Democrats now want to
rewrite the legislative history, what ultimately matters is what is in the
actual text that Congress voted on.
In 2011 — the year after Obamacare passed — the Obama
Treasury Department issued rules pertaining to the subsidies that made abundantly
clear that the statute said that the affordability threshold applied only to
individual insurance:
Thus, the statutory language
specifies that for both employees and others (such as spouses or dependents)
who are eligible to enroll in employers sponsored coverage by reason of their
relationship to an employee (related individuals), the coverage is unaffordable
if the required contribution for ‘‘self-only’’ coverage (as opposed to family
coverage or other coverage applicable to multiple individuals) exceeds 9.5
percent of household income.
Congress never acted in the intervening eleven years to
change the relevant text of Obamacare. As a result, the constitutional path
forward for Biden was clear. If he wanted to eliminate the “family glitch,” he
had to ask Congress to amend the law. Otherwise, that’s the end of the story.
But Biden, who sought to illegally extend the eviction
moratorium and illegally mandate vaccines for everybody who works for large
employers, and who illegally bypassed Congress to dole out a half-trillion
dollars in student-loan relief, was characteristically unwilling to let the law
stand in the way of his preferred policy.
“Health care should be a right, not a privilege,” Biden
said in announcing a new rule from the Treasury Department that would rewrite
Obamacare to address the “family glitch.” He boasts that “this marks the most
significant administrative action to implement the Affordable Care Act since
the law was first put into place.”
Indeed, the CBO estimates that the unilateral rule
change, which is slated to become effective next month, will cost up to $44
billion over the next decade.
We urge injured parties to sue the administration without
delay to stop another breathtaking power grab from Biden.
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