Friday, August 17, 2012

Obama’s Overreaches

The president has repeatedly ignored separation of powers.

The last couple of weeks have seen a major dust-up over President Obama’s proposal to waive some of welfare reform’s work requirements. It might be a bit of a stretch to say that the president has “gutted” welfare reform, since we don’t yet actually know what those waivers will be. Right now, we are more or less left to trust the president when he says that he won’t use the waivers to weaken welfare-to-work, a dubious prospect given the president’s long record of hostility to welfare reform.

However, an even bigger concern is the president’s assertion that he has the power to waive those requirements in the first place, especially since the law clearly appears to prohibit such waivers. The authors of welfare reform, both legislators and staffers, are on record as saying that they intended to prohibit any waiver of work requirements. Representative David Camp, who helped write the law as a member of the Ways and Means Committee, says “it contained specific language prohibiting any administration from granting states waivers from the work requirement.”

The administration, on the other hand, contends that they have found a loophole because the work requirements are mentioned, tangentially, in another section of the law over which the administration does have waiver power. That may or may not stand up in court, but it certainly seems to violate the spirit of the welfare-reform law.

While much of this might seem like an arcane legal dispute, it is part of a disturbing trend. The Obama administration has developed a penchant for unilateral action that would make even the most ardent advocate of an imperial presidency blush. On issue after issue, the president insists that “we can’t wait.” He won’t wait for a Congress that may not agree with his ideas for remaking America; he will simply act all by himself.

For example, the Obama administration has taken upon itself the authority to waive many of the provisions of the No Child Left Behind Act. Twenty-six states have now received waivers from NCLB, allowing them to work around the law’s toughest provisions: that all students test proficient in math and science by 2014, and that schools make “adequate yearly progress” in getting students to pass standardized tests to avoid being labeled “failing.” Another dozen or so states’ waiver requests are pending.

Again, the issue is not the material effects of the waivers. NCLB is, after all, a significantly flawed piece of legislation that imposed federal control over the traditionally state-level responsibility for education. But the Obama administration used the waivers to effectively rewrite the law, establishing a whole new set of rules for those states receiving a waiver. The Obama administration simply dispensed with the messy legislative process and imposed its own federal education law.

Of course, there is no better example of the Obama administration’s penchant for unilaterally rewriting laws than Obamacare. It is well known that the Obama administration has already issued more than 1,200 waivers of various provisions to companies and even entire states. It has also postponed the implementation of provisions that have proved inconvenient. For example, it simply dropped implementation of the CLASS Act, an actuarially unstable long-term-care-insurance program, after it had opposed congressional attempts to officially repeal the provision.

The administration’s authority to take these actions is debatable at best. But far more troubling are its efforts to unilaterally rewrite another provision of the law. At the heart of Obamacare’s attempt to expand the number of people with health insurance are two complementary provisions: the establishment of insurance exchanges in every state and the provision of subsidies for individuals and families earning as much as 400 percent of the poverty level ($92,200 for a family of four). These subsidies will cost the federal government over $1 trillion through 2022.

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