Keith Mack
President Obama has been accused of violating the US Constitution on several occasions. These include:
- Delaying the implementation of Obamacare's out-of-pocket caps, employer mandate, and insurance requirements.
- Exempting Congress from Obamacare.
- Expanding the employer mandate penalty through IRS regulation.
- Political profiling by the IRS.
- Making outlandish Supreme Court arguments.
- Making recess appointments.
- Assaulting free speech and due process on college campuses.
- Issuing a 'mini-DREAM Act' for young people brought into the country illegally as children.
- Failing to take care that the laws be faithfully executed.
- Issuing blanket waivers that exempt large classes of the population from duly enacted laws.
- Issuing waivers to the No Child Left Behind Act and the Welfare Reform Bill.
- Ignoring the Senate's constitutional role in the appointment process.
- Showing contempt for Congressional oversight of its activities.
- Ignoring the Constitution's protections of individual rights, most notably religious freedom.
- Suspending the law's operation with respect to immigration laws.
- Making recess appointments when the Senate did not consider itself in recess.
- Asserting executive privilege in response to a legitimate congressional inquiry related to Operation Fast and Furious.
- Stopping the enforcement of key provisions of the Immigration Nationality Act.
- Issuing an executive order providing that illegal immigrants who meet certain qualifications may apply for work permits.
- Issuing an executive order to raise the minimum wage for federal contract workers to $10.10 per hour.
- Issuing an executive order to protect federal employees from being discriminated against on the basis of gender identity.
- Stopping the deportation of some immigrants who were brought to the country illegally as children.
What You'll Learn
Delaying Obamacare's out-of-pocket caps
In February 2013, the Obama administration delayed the implementation of the Affordable Care Act's (ACA) out-of-pocket caps for a year. This cap was a limit on the amount individuals had to spend on their health insurance. The delay was announced by the Labor Department and meant that insurers and employers were given more time to comply with the rapidly changing regulations.
While this delay may have been sensible from a practical standpoint, it also raised constitutional concerns. Changing the law, it was argued, required actual legislation, not just executive action. This delay was one of several related to the ACA, including delays in employer mandates and insurance requirements.
The ACA's out-of-pocket maximums are a critical protection for individuals, limiting the amount they have to spend on covered services in a policy period. These maximums vary based on the year and the type of plan, with individual and family plans having different caps. For example, in 2023, the out-of-pocket maximum was set at $9,100 for an individual plan and $18,200 for a family plan before marketplace subsidies.
The ACA also introduced cost-sharing reduction subsidies for individuals and families with incomes below 250% of the Federal Poverty Level (FPL). These subsidies further reduce out-of-pocket costs and the out-of-pocket maximum. For instance, for 2015, if an individual's income was between 100% and 200% of the FPL, their out-of-pocket limit was no more than $2,250, while for a family, it was $4,500.
The delay in implementing the out-of-pocket caps, while perhaps understandable from an administrative perspective, did raise questions about the balance between practical considerations and the requirement for legislative action to change laws.
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Delaying Obamacare's employer mandate
The Obama administration's delay of the employer mandate portion of the Affordable Care Act (ACA), or Obamacare, is considered by some to be a violation of the US Constitution.
The employer mandate, which was originally set to begin in 2014, required that all businesses with 50 or more full-time equivalent employees (FTE) provide health insurance to at least 95% of their full-time employees and dependents up to age 26, or pay a fee. Firms with 100 or more FTEs needed to insure at least 70% of their full-time workers by 2015 and 95% by 2016. Small businesses with 50-99 FTEs needed to start insuring full-time workers by 2016.
In July 2013, the Obama administration announced via blog post that it was delaying the requirement, citing statutory authority. However, the cited provisions only allowed for the delay of certain reporting requirements, not of the mandate itself. This delay was one of ten constitutional violations that President Obama committed in 2013, according to an article in Forbes.
The delay of the employer mandate had significant implications for businesses and their employees. By delaying the mandate, the Obama administration provided businesses with additional time to comply with the complex requirements of the ACA. On the other hand, it also meant that many employees who were expected to gain insurance through their employers would have to wait longer to access health coverage.
The employer mandate is a controversial aspect of the ACA, with some arguing that it places an undue burden on businesses, while others see it as a necessary measure to ensure that large employers contribute to the healthcare system. The delay of the mandate highlights the challenges of implementing complex healthcare reforms and the potential consequences for different stakeholders.
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Delaying Obamacare's insurance requirements
In 2013, President Obama delayed the insurance requirements outlined in the Affordable Care Act, or Obamacare. This was the third delay of Obamacare's provisions, following the delay of out-of-pocket caps and the delay of the employer mandate.
The famous pledge that "if you like your plan, you can keep it" backfired when insurance companies started cancelling millions of plans that didn't comply with Obamacare's requirements. In response, Obama called a press conference to proclaim that people could continue buying non-complying plans in 2014, despite Obamacare's explicit language to the contrary. He then refused to consider a House-passed bill that would have made this action legal.
The delay of Obamacare's insurance requirements was one of ten constitutional violations that President Obama committed in 2013, according to an article in Forbes. The other violations included exempting Congress from Obamacare, expanding the employer mandate penalty through IRS regulation, and political profiling by the IRS.
The Supreme Court is set to review the constitutionality of Obamacare's preventive care coverage requirements in the spring of 2025. The case was brought by a Christian-owned business and six individuals who objected to the requirement that healthcare plans cover pre-exposure medications to prevent the spread of HIV, arguing that this "encourages and facilitates homosexual behaviour" and conflicts with their religious beliefs. The lower court's ruling found that the coverage requirements were adopted unconstitutionally because they came from a body whose members were not nominated by the president or confirmed by the Senate.
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Exempting Congress from Obamacare
One of the accusations against former US President Barack Obama is that he violated the US Constitution several times during his presidency. One of the alleged violations is the "Exemption of Congress from Obamacare".
The Affordable Care Act, also known as "Obamacare", includes a provision that requires members of Congress and their staff to purchase health care from exchanges rather than through a taxpayer-funded program. In August, President Obama directed the Office of Personnel Management (OPM) to interpret the law in a way that allowed Congress to maintain their generous benefits, which some argue is a violation of the Constitution.
The OPM regulation states that the Affordable Care Act requires all members of Congress and staff to purchase health care on the exchanges, per the amendment to the original law. However, the Act does not mention the employer contribution that Congress and staff currently receive. The OPM argues that Congress had the opportunity to remove the employer contribution when designing the Affordable Care Act but did not do so. As a result, the OPM must issue regulations consistent with the law, which defines healthcare coverage for Congress and its staff.
Opponents of the Affordable Care Act argue that this interpretation of the law amounts to exempting Congress from the requirements of Obamacare. They claim that this is a special exemption that is not available to other large employers in the United States. However, others argue that this is a myth and that the regulation simply treats Congress uniquely because it is the only large employer forced onto its exchanges.
The controversy over the alleged exemption has led to legislative proposals, such as the Vitter Amendment, which seeks to clarify the law and extend the provisions forcing Congress and staff onto the exchanges to the President, Vice President, and political appointees. The Vitter Amendment also removes the employer contribution that the OPM regulation maintains.
While the exemption of Congress from Obamacare is a controversial issue, it is important to note that there are differing interpretations of the law and regulations involved. The ultimate impact of this alleged exemption on governance and the federal workforce remains a subject of debate.
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Expansion of the employer mandate penalty through IRS regulation
In 2013, President Obama was accused of violating the US Constitution through his administration's expansion of the employer mandate penalty through IRS regulation. This was part of the Affordable Care Act (ACA), commonly referred to as "Obamacare".
The ACA's "employer mandate" requires certain employers, called Applicable Large Employers (ALEs), to offer affordable health insurance coverage that meets minimum value and minimum essential coverage (MEC) standards to their full-time employees and their dependents. ALEs are organisations with 50 or more full-time equivalent employees. If ALEs fail to do so, they may be subject to penalties, also called "shared responsibility payments".
Obamacare grants tax credits to people whose employers don't provide coverage if they buy a plan "through an Exchange established by the State". It then fines employers for each employee receiving such a subsidy. No tax credits are authorised for residents of states where the exchanges are established by the federal government. This was intended as an incentive for states to create their own exchanges. However, only 16 states did so.
In response, the IRS issued a rule that allowed subsidies (and commensurate fines) for plans coming from "a State Exchange, regional Exchange, subsidiary Exchange, and federally-facilitated Exchange". This meant that employers could now be fined for employees receiving subsidies through federal exchanges, which was not previously allowed.
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Frequently asked questions
Yes, according to Forbes, Obama broke the law by delaying Obamacare's out-of-pocket caps. The Labor Department announced in February that it was delaying for a year the part of the healthcare law that limits how much people have to spend on their own insurance. This may have been sensible—insurers and employers need time to comply with rapidly changing regulations—but changing the law requires actual legislation.
Yes, according to Forbes, Obama broke the law by delaying Obamacare's employer mandate. The administration announced via blog post on the eve of the July 4 holiday that it was delaying the requirement that employers of at least 50 people provide complying insurance or pay a fine. This time it did cite statutory authority, but the cited provisions allow the delay of certain reporting requirements, not of the mandate itself.
Yes, according to Forbes, Obama broke the law by delaying Obamacare's insurance requirements. The famous pledge that “if you like your plan, you can keep it” backfired when insurance companies started canceling millions of plans that didn't comply with Obamacare’s requirements. President Obama called a press conference last month to proclaim that people could continue buying non-complying plans in 2014—despite Obamacare’s explicit language to the contrary. He then refused to consider a House-passed bill that would’ve made this action legal.
Yes, according to Forbes, Obama broke the law by exempting Congress from Obamacare. A little-known part of Obamacare requires Congressmen and their staff to get insurance through the new healthcare exchanges, rather than a taxpayer-funded program. In the quiet of August, President Obama directed the Office of Personnel Management to interpret the law to maintain the generous congressional benefits.
Yes, according to Forbes, Obama broke the law by expanding the employer mandate penalty through IRS regulation. Obamacare grants tax credits to people whose employers don’t provide coverage if they buy a plan “through an Exchange established by the State”—and then fines employers for each employee receiving such a subsidy. No tax credits are authorized for residents of states where the exchanges are established by the federal government, as an incentive for states to create exchanges themselves. Because so few (16) states did, however, the IRS issued a rule ignoring that plain text and allowed subsidies (and commensurate fines) for plans coming from “a State Exchange, regional Exchange, subsidiary Exchange, and federally-facilitated Exchange.”
Yes, according to Forbes, Obama broke the law by allowing political profiling by the IRS. After seeing a rise in the number of applications for tax-exempt status, the IRS in 2010 compiled a “be on the lookout” (“BOLO”) list to identify organizations engaged in political activities. The list included words such as “Tea Party,” “Patriots,” and “Israel”; subjects such as government spending, debt, or taxes; and activities such as criticizing the government, educating about the Constitution, or challenging Obamacare. The targeting continued through May of this year.
