WASHINGTON D.C. – President Obama turned to prosecutorial discretion yet again Thursday as he tried an end run aroundÂ Congress, claiming unilateral authority to let companies continue to offerÂ health careÂ plans under Obamacare even if those plans violate his namesake law.
The move drew howls of disapproval from Republicans and ignited a legal debate over whether Mr. Obama has the executive authority he is claiming.
â€œLook, this is going to be litigated,â€ saidÂ Rep. Michael C. Burgess, Texas Republican.
The administration said Mr. Obama was tapping his â€œenforcement discretionâ€ in much the same way he did last year, when he said he had the power to unilaterally halt deportations of young illegal immigrants and instead granted them legal status and work permits.
â€œHHS will be using its enforcement discretion to allow for this transition,â€ said an administration official briefing reporters ahead of Mr. Obamaâ€™s announcement. â€œEnforcement discretion can be used generally in transitions, as well as a bridge towards legislation. This is something that has been used, for example, with the deferred action for childhood arrivals policy, pending immigration reform.â€
That immigration policy, known by its acronym DACA, has proved controversial as well. Under it, Mr. Obama has determined that young illegal immigrants shouldnâ€™t be deported, even though the law calls for that.
The presidentâ€™s claims of executive authority have irked conservatives ever since Mr. Obama took office in 2009, but Republicans said it has been particularly egregious when it comes to the health care law.
Mr. Obama already has unilaterally suspended theÂ employerÂ mandate requiring large companies to prove they are providing insurance coverage for their employees. His administration also ruled that members ofÂ CongressÂ who are being pushed into the health care exchanges could continue to have taxpayers pay for most of their premiums, even though most people in the exchanges wonâ€™t have that same benefit.
In this latest instance, Mr. Obama was moving to circumvent part of the law that bans health care plans that donâ€™t meet certain standards.
That has led to millions of consumers in the individual market receiving cancellation notices in recent months â€” and it has caused a major headache for Mr. Obama, who had vowed that those who liked their would be able to keep them.
House Republicans have proposed a bill, which is set for a floor vote Friday, that would overturn Obamacareâ€™s requirements and let insurance companies continue to offer existing plans. Americans who purchase one of those plans would be considered to have met Obamacareâ€™s individual mandate.
That bill had earned support of a growing number of Democrats, and Mr. Obamaâ€™s move Thursday was an effort to try to head off an embarrassing no-confidence vote from his own party on the Republicansâ€™ proposal.
â€œWe put a grandfather clause into the law, but it was insufficient,â€ the president said at a news conference Thursday, explaining his move.
Under the loophole, Mr. Obama will leave it up to state health insurance commissioners to decide which substandard plans still can be offered by insurance companies, and he has pledged that his administration wonâ€™t penalize them for offering those plans even though they violate theÂ AffordableÂ Care Act.
The extension will last one year.
Legal scholars have questioned whether Mr. Obama has that sort of broad authority on deportations, and Thursdayâ€™s
move reignited that debate.
â€œIt is true that the chief executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year â€” simply to head off actual legislation not to his liking,â€ Eugene Kontorovich, a professor at Northwestern UniversityÂ SchoolÂ of Law, said in a blog post at Volokh Conspiracy.
â€œThe â€˜fixâ€™ amounts to new legislation â€” but enacted withoutÂ Congress,â€ Mr. Kontorovich said. â€œThe president has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail.â€
Mr. Obamaâ€™s Democratic allies on Capitol Hill, however, said they believe he acted within his power and has done enough to solve the problem.
â€œThere is no need for a legislative fix for this issue,â€ said Senate Majority Whip Richard J. Durbin, Illinois Democrat.
Republicans, though, counter that even if itâ€™s legal, Mr. Obamaâ€™s fix is temporary and he could change it at any time â€” meaning insurance companies lack the kind of certainty they need to doÂ business.