By Robert Book
Forbes, June 29, 2017
While most of the reaction to the Supreme Court’s decision in King v. Burwell has centered on the political victory for the president and the various winners and losers from the decision itself, a more far-reaching consequence has received much less notice. The legal dispute hinged around whether a law means what it says, or means what someone reading later – say, an admistration official – thinks it must have really meant, or prefers it would have meant. More generally, however, the issue raised is whether laws passed by Congress have to be administered as written, or whether a President can change the law it will in whatever what he or she thinks will be better.
Grace-Marie Turner of the Galen Institute has compiled a list of 51 changes made to the ACA since it was passed. Of these, 17 were made in the “traditional” ways laws are changed – Congress passed a new law describing the change, and the president signed it. Two were made by the Supreme Court in 2012, one on constitutional grounds.
However, 32 of these changes were made solely by the Obama administration announcing it would not implement the law as written. In some cases, the announcements were made through the regulatory process (for example, the additional tax credits upheld in King v. Burwell, but also those extended credits to employees not eligible under the ACA, and delaying the Small-Employer Health Option Program).