The Greatest Threat to the Affordable Care Act's Survival: President Obama
Since The Affordable Care Act's inception, conservative groups have attempted many ways to undermine President Obama's signature legislation with little success. Two cases made it to the Supreme Court in an attempt to overturn or significantly undermine the legislation. The first questioned the constitutionality of the individual mandate--legal due to Chief Justice Roberts's reasoning that the mandate was merely a tax, which the federal government can clearly do, (even when the government claimed what they were doing wasn't a tax while they were attempting to pass the law). The second legal case challenged the way the law provided subsidies to individuals that signed up for health care on exchanges established and run by the federal government; that challenge also failed. Other attempts have been made to undermine the law with even less fanfare or success, including a legal challenge that argued the law ran afoul of the origination clause. There was also the 2013 government shutdown debacle (led by Iowa frontrunner Ted Cruz), and even recently an actual bill passed both chambers (after countless show votes) to repeal the ACA, forcing a President Obama veto . The Affordable Care Act, for all its perceived flaws, has survived a litany of conservative challenges, yet a new and significant challenge is lurking. Ironically, it's biggest advocate isn't a conservative group; it's President Obama though his use of prosecutorial discretion on immigration.
Prosecutorial Discretion is not new and has been used by bot conservative and liberal presidents. The President, as the leader of the executive branch, isentrusted with enforcing the laws of the country. But for logistical reasons not everything can be enforced at all times. There are simply a lot of laws and a limited number of resources--people and money--to enforce all of the laws. This is the reason why the DEA focuses on drug smugglers more than a standard marijuana consumer even though both are running afoul of the law. It's the reason why the chances of being audited by the IRS for tax compliance go up significantly for the rich, and it's the reason President Obama wants to focus on criminal illegal aliens rather than parents of US citizens and "Dreamers". Laws are also not prescient; they do not foresee every particular circumstance. Followingthe Simpson-Mazzoli Act--which providedresidency (amnesty if you're a conservative reading this) to 3 million people--Presidents Reagan and Bush used prosecutorial discretion when applying the new law and applied the law to family members of those already accounted for in the law. Actual numbers of people affected by this law range from as little as 50,000 to as much as 1.5 million people.
Supporters of President Obama's executive action argue that President Obama is merely using prosecutorial discretion in the way it has been constitutionally upheld in the past. By acknowledging limitations in immigration resources, he's merely prioritizing more importantdeportations and enforcement ahead of deporting--immigration status aside--law abiding citizens. The stated protection he's offering people is just an added piece ofcertainty/security in their lives that will help them in a number of positive ways. No new laws are being created and advocates acknowledge that a subsequent president could undo President Obama's actions.
Detractors argue that President Obama is overreaching his authority. They argue that unlike Reagan and Bush Senior, Obama is not applying prosecutorial discretion to a new law with the stated purpose of providing residency or legal status for aliens. Therefore, the scope of his decision is tantamount to refusal to enforce the law at all. While it might be within a President's prerogative to prioritize enforcement, discretion stops when the executive refuses to effectively enforce the law all. Basically, he has more resources than he's willing to use. Detractors might also argue that while not actively looking for such individuals (like marijuana consumers) might be a prudent use of resources, proactively preventing the enforcement of the law when INS officials come across illegal aliens should not be a discretionary act.
How does Immigration Enforcement Affect The Affordable Care Act?
Prosecutorial Discretion is used to enforce tax law too. There are a lot of tax laws and a lot of people underpaying taxes. In 2012, the IRS estimated the 2006 tax gap--the difference between what the IRS should collect and what taxpayers actually pay--at $385 billion, with other analysts arguing the true number was as high as $600 billion. The same logistical problems with immigration enforcement are presented with tax law enforcement. A republican president could apply the same logic President Obama is using on immigration and choose to not enforce the individual mandate, arguing that the executive needs their resources to go after illegal syndicates, billionaires and millionaires, and even tax avoiding and/or evading companies all whileproviding relief for cash-strapped, debt-ridden, healthy millennials. A key component of the law could effectively go unenforced for years and the ACA's effectiveness would be put in serious jeopardy.
It's worse than it sounds.
While President Obama's executive action is being challenged legally, deportations for members qualifying for deferred action have slowed significantly but the real prize--security from deportation with documentation for temporary legal status--is on hold. A republican president facing a similar legal challenge would effectively have the prize right away; non-enforcement of the law would be the prize in-and-of-itself. The time it takes for a case to work its way through the court hurts President Obama, but would actually benefit a republican president with a wish to undermine the healthcare law.
Trying to Thread the Needle
Ultimately, these are arguments about where discretion starts and stops; how much leeway does the President really have, and what areas does discretion apply? Liberal advocates for both the President's executive action on immigration and the Affordable Care Act will rightly point out that immigration has some inherent ties with foreign affairs, but the same argument could and will be made regarding tax enforcement. Liberal legal opinions will be countered with conservative ones. Perhaps President Obama's executive action and the wide scope of his discretion are legal, can only be applied narrowly to immigration and not to other law enforcement areas, but that is a hard needle to thread. If it's not thread correctly, then either his executive action or the ACA's future enforcement could be in jeopardy.