Talk about a smokescreen.
When President Obama pledged to use executive orders to do what he couldn’t get Congress to do, no one thought such an extreme, in-your-face challenge could be a diversion. But it now looks as though that is what it might have been.
For some of the most extreme unilateral administration actions are turning out to be not the work of the presidential pen but actions taken in bureaucratic darkness. I’m talking about quiet extensions of agency authority and adjustments in the interpretation of complex laws either though quietly released new regulations or even bypassing the formal regulatory process.
On Monday, the Washington Examiner reported (http://washex.am/1gUSD4U) that the administration is considering extending the “risk corridors” in the Affordable Care Act. “Risk Corridors” are Obamcarespeak for what was initially labeled as insurance for health insurance companies that participated in the government insurance scheme. Companies would pay into a pool from which those who suffered losses would be compensated. Now it is clear that corridors are not insurance but subsidies, essentially bailouts from the universal losses that the program imposes.
The problem is that the bailout expires in the law itself in 2016. So the administration, on its own, according to the Examiner, is preparing to extend it.
This morning at the Volokh Conspiracy (newly acquired by the Washington Post and the nation’s most widely read and respected legal blog) Case-Western law professor Jonathan Adler writes (http://wapo.st/1fdiGGl), “Nowhere that I can find does the [Obamacare] law provide for, or otherwise authorize, risk corridors past 2016, nor have I found language that could serve as a generic authorization for this initiative.” He adds, “Were that not bad enough, the Administration also lacks the authority to authorize insurance companies to renew noncompliant policies (a point which some of the Administration’s defenders now concede).”
Here is the point. This contemplated move was clearly not on the way to being trumpeted from a lectern in the White House’s Rose Garden. Rather, the instrument of implementation was to be a reinterpreted regulation or some other surreptitious device.
That is speculation, of course, but informed speculation. For it is just the way Team Obama has gone about extending another of its monster, thousand-plus-page laws: the Dodd-Frank financial reform act, like the ACA enacted by the uberDemocratic Congress of the President’s first two years in office.
For two years now, the Administration has been trying to bring mutual funds under the scope of that law. Originally they wanted the Securities and Exchange Commission to enact rules that would have imposed on the industry regulations more or less parallel to Dodd-Frank. But a Democratic commissioner sided with the panel’s two Republicans in blocking the move.
So after frustration on other procedurally valid fronts, the Administration took a different tack. As reported on the Wall Street Journal editorial page in December (http://on.wsj.com/1blamTN):
Retired House Democrat Barney Frank is the last person on the planet you’d expect to criticize implementation of the 2010 law that bears his name. But there he was at a recent event hosted by the Clearing House trade group, suggesting that regulators ought to focus on banks instead of mutual-fund companies.
According to the Clearing House, Mr. Frank said he did not favor designating such large asset managers as BlackRock or Fidelity as “systemically important” and that this was not the intent of his law. He added that “overloading the circuits isn’t a good idea” and said that the Financial Stability Oversight Council created by Dodd-Frank “has enough to do regulating the institutions that are clearly meant to be covered—the large banks.” Mr. Frank told the crowd, “I have not seen the argument made yet to cover” the “very plain-vanilla asset managers.”
The point here is that, as appeared destined to happen with Obamacare’s risk corridors before the Examiner blew the whistle, Administration-imposed changes in the Dodd-Frank law were not the product of a presidential pen and were not trumpeted in the White House Press Room. They were being executed beyond public view, and, as Mr. Frank made clear, against the intent of a law whose intent he knows better than anyone else.
In recent days, new IRS attempts to stifle free speech have come to light (http://bit.ly/1bLfK3a). Who knows what else is quietly bubbling in the cauldrons of agencies?
The Constitution disperses power among the branches of government and between levels of government to prevent unilateral action and force publicly conducted deliberation. Mr. Obama has made it clear that public deliberation and the compromises that go with it are not for him. The question now is, are they for the rest of us?