The administration’s decision to extend the period for open enrollment in the Affordable Care Act past the March 31 deadline is hardly surprising. The list of delays, extensions, and postponements of various aspects of the law is already so long that even an article devoted to the topic–such as the one published today by Politico titled “A Brief History of ObamaCare Delays”–is itself an abridged list of only the most prominent examples.
This latest instance is defended by the administration and its supporters as just a commonsense measure intended to help those who were stymied during the enrollment process by the glitch-ridden Heatlhcare.gov website. But the political implications of this decision are more far-reaching than the matter-of-fact announcement that sought to represent it as not a big deal. The delay seeks to get the president off the hook for the ACA likely falling millions short of the seven million enrollees that constituted the administration’s initial goal as well as the benchmark that would enable the ACA to be fiscally responsible.
At this point any excuse, no matter how flimsy, to do something to soften the blow of the expected shortfall makes sense for an administration that is already having a tough time selling the unpopular scheme to the public. But more than that, the record of unending delays and meaningless deadlines set up a situation where it will be difficult if not impossible for the federal government to police those provisions of the law that it really does want to enforce. Coming at a time when the Health and Human Services contraception mandate is under attack in the Supreme Court and, just as significantly, the system of ObamaCare subsidies is in peril of being overturned in the federal appellate courts, this new delay is just one more reason why the law is rightly viewed as having brought chaos rather than reform to the health-care system.
As we noted yesterday, the willingness of the administration to regard enforcement of the various provisions of the health-care law as optional is undermining its ability to defend the contraception mandate in the Hobby Lobby case. And, as Philip Klein reports in the Washington Examiner today, the legal challenge to the subsidy system may be even more dangerous to ObamaCare’s future than the more famous Hobby Lobby case that revolves around the law’s assault on religious liberty. Since the law was written so as to create subsidies for ObamaCare consumers through state-run exchanges, the fact that many states have not chosen to set them up creates a constitutional problem that can only be solved by a revision of the law by Congress or a decision by the courts to do so on their own. Since the courts are properly reluctant to re-write a statute in this manner and there is no chance that Congress will do anything to fix the problem, the system of subsidies may well be overturned, creating even more chaos for the already misnamed Affordable Care Act. If so, implementation of the unwieldy legislation will become impossible.
While Democrats are trying to put a brave face on their defense of ObamaCare, they know that this is the issue that could cost them the Senate in what may well turn out to be an even worse drubbing this fall than the one they suffered in 2010. The administration has tried to postpone as much of the pain from this law until after 2014 as they can. The federal courts are unpredictable and public opinion may be fickle. But by adding to the impression that the law on which the president staked his reputation is in a state of chaos, the latest delay—and the ones that will inevitably follow it in the months to come—may only make it even more likely that congressional Democrats will suffer a grave defeat in November.