The Washington Post reports this morning that 10 Democratic Senators – including both Colorado Senators – have asked the Obama Administration to extend the open enrollment period for new insurance under Obamacare. Their request stems from the well-publicized problems with the rollout of the insurance exchange websites, the primary mechanism for enrolling in Obamacare and purchasing new insurance, as required by the individual mandate. The letter reads, in part:
Given the existing problems with healthcare.gov and other state-run marketplace websites that depend on the federally-administered website, we urge you to consider extending open enrollment beyond the current end date of March 31, 2014. Extending this period will give consumers critical time in which to become familiar with the website and choose a plan that is best for them. Individuals should not be penalized for lack of coverage if they are unable to purchase health insurance due to technical problems.
While this may sound like a good idea, it likely won’t work without a delay in the individual mandate (See Solution #7), and is almost certainly illegal under Section 1311 of the law:
The three-month open-enrollment period isn’t statutory; instead, the ACA directs the Secretary to establish an “initial open enrollment” period. Normally she’d have the discretion to tinker with that as necessary. But the statute also requires her to establish that initial period by “not later than July 1, 2012.” Well, she’s blown through that already — and the provision appears to preclude her from rethinking the determination now. For years after 2014, the statute’s quite clear that she’s got discretion to set annual enrollment periods. But that broad discretion exists only “for calendar years after the initial enrollment period.” That reinforces the suggestion that she can’t rethink the open-enrollment period now.
Apparently, a 2700-page law that’s generated 11000 pages of regulations, includes almost unlimited waiver capacity for the President’s friends, excludes all manner of people responsible for passing and implementing it, and even permits the executive to ignore whole sections of it, still didn’t provide enough flexibility after the election. Now, Democratic Senators who are staring political mortality in the face are encouraging the HHS Secretary – and by extension, the President – to just ignore the law altogether to help get them out of this mess.
Either Senators Udall and Bennet knew this was illegal when they signed the letter, or they didn’t. Either way, this amounts to an abdication of responsibility of elected representatives.
If they did know, they’re encouraging not merely this Administration’s habit of arbitrary rule and lawlessness within the law, but actual black-letter lawlessness. If they didn’t know, it’s a testament to the dangers of voting on bills you couldn’t have read, much less understood, that hand over wholesale lawmaking authority to another branch of government. The problem with the latter is that it becomes a habit, and little by little, and then all at once, you find yourself running for an office that doesn’t matter at all, while the real power has coalesced into a single executive and an unelected civil service.
How about this. Since Senators Udall and Bennet don’t seem interested in governing, how about elect someone who is?