Implementing Obamacare: A Pattern of Disregard for the Law and the Constitution

Not only is Obamacare itself unconstitutional, the Obama administration has been implementing it in an unconstitutional manner.

We have found three instances where the Department of Health and Human Services (HHS) has violated the separation of powers by writing regulations that exceed the authority granted to it by Congress in the implementation of Obamacare.

Independent "Dependents"

One of the “benefits” touted by proponents of Obamacare is the mandate on insurers to allow “dependent” children under age 26 to remain on their parents’ health insurance.

The problem is with how Secretary Kathleen Sebelius has defined the term “dependents”

Here’s how the Secretary defines “dependents”:

(b) Restrictions on plan definition of dependent. With respect to a child who has not attained age 26, a plan or issuer may not define dependent for purposes of eligibility for dependent coverage of children other than in terms of a relationship between a child and the participant. Thus, for example, a plan or issuer may not deny or restrict coverage for a child who has not attained age 26 based on the presence or absence of the child’s financial dependency (upon the participant or any other person), residency with the participant or with any other person, student status, employment, or any combination of those factors.¹

The Secretary clearly has the authority to define the term “dependents.” Section 2714(b) of Obamacare says, “Regulations.--The Secretary shall promulgate regulations to define the dependents to which coverage shall be made available under subsection (a).”²

But Sebelius has defined it so broadly that the meaning of the word “dependents” is obliterated.

The statute only gives her the power to define which dependents must receive their parents health insurance benefits from insurers, but whomever this includes—they must be dependents!

The way the Secretary has interpreted “dependents,” you could be married, have kids of your own, be independently wealthy, and live on the other side of the country from your parents in a house you paid for in cash—and your parents’ insurance will still have to cover you!

When “In Conjunction With” Means “Whether you Like It or Not.”

No one wants to see health insurance rates rise. But instead of returning us to a market-based health care system were individuals have control of their health expenses, Obamacare encourages price control mechanisms.

One such mechanism requires HHS “in conjunction with the States,” to “establish” a premium rate review program.³. HHS is authorized to give grants to states that implement the program. Five states chose not to accept the first of two grants and a sixth returned the money it received.

Yet, under the Secretary’s proposed regulation, the federal government will step in to force insurance company participation, even in the six states that have refused to act “in conjunction” with HHS to implement this program.

This is nothing less than blatant disregard for the text of the statute.

Health insurance companies, at least in the six states that have refused grant money (but perhaps others), should consider whether HHS’s regulation (once implemented) gives them a cause of action against the Obama Administration.

Unauthorized Regulation to Avoid Disaster

Kaiser Health News reported in August of last year that the American Council on Education, along with 12 other college trade associations, wrote to Sebelius to warn her Obamacare would prevent colleges from offering “limited duration” policies to college students.⁴ Colleges would be required to offer the insurance plans to anyone—not just students.

The problem for HHS is that Congress did not authorized Sebelius to give waivers for “limited duration” policies such as those offered by colleges to their students.

So, in order to prevent a public relations nightmare for Obamacare, Sebelius is twisting a section of the law to say that she has the power to grant the waivers these colleges are requesting.
To do this, Sebelius uses the following clause:

[N]othing in this title…shall be construed to prohibit an institution of higher education...from offering a student health insurance plan. . . .⁵

Then, the Secretary argues that because Obamacare “effectively prohibits” colleges from offering health plans, she has the power to grant a waiver.

The problem is that nothing in Obamacare “prohibits” colleges from offering student health plans. While Obamacare makes it difficult and impractical to offer such plans—it does not prohibit them.

Sebelius tries to get around this by changing the terms of the statute. The terms clearly say that “nothing shall be construed to prohibit….” She changes “prohibit” to “effectively prohibit.”

But there is not even an effective prohibition on colleges offering student health plans. While Obamacare may make it inconvenient, uneconomical, ill-advised, or even impractical to offer student health plans, it does not legally prohibit such plans, whether, actually or effectively.

The Secretary’s assumption of power she was not granted, continues a pattern of disregard for the Constitution and laws of the United States.

¹ 75 Fed. Reg. 27,122, 27,136 (May 13, 2010)(to be codified at 29 C.F.R. § 2590.715–2714(b)).
² 42 U.S.C. § 300gg-14(b)(2011).
³ 42 U.S.C. § 300gg-94(a)(1)(2011).
⁴ Julie Appleby, Colleges Say new Health Law May Imperil Student Policies, Kaiser Health News, Aug. 20, 2010, http://www.kaiserhealthnews.org/Stories/2010/August/19/college-health-pl...
⁵ 76 Fed. Reg. 7,767, 7,775 (Feb. 11, 2011)(to be codified at 45 C.F.R. §§ 144.103 and 147.145).
⁶ Id. at 7,769.