What remedy exists for unconstitutional changes to ObamaCare by the executive branch?


In a breaking story, the Obama administration is making an exemption in the Affordable Care Act (aka ObamaCare) that "will let people who lost coverage and are struggling to get a new plan sign up for [catastrophic] policies."

It is unconstitutional to change provisions of a law once Congress has specifically written those provisions into the law, and it is passed by the president.

What is the Constitutional recourse (if any) for unconstitutional changes to Obamacare by the executive branch?

Matt Davis

Posted 2013-12-20T04:42:36.943

Reputation: 503

possible duplicate of Under what executive authority does the President have to delay the employer mandate?

– Publius – 2013-12-20T05:14:20.220

@Avi, I will agree that the link addresses the first part of my question, but it does not appear to deal with the second part at all, namely what is the recourse if such (presumably) unconstitional action is taken. – Matt Davis – 2013-12-20T06:13:15.683

3If something actually is unconstitutional then you challenge it in court, presuming you have standing. – Publius – 2013-12-20T07:53:00.790

@Avi - "presuming you have standing" is the rub. – user4012 – 2013-12-22T19:00:12.833



There are a couple of things that can happen.

You can bring a case to court, and if a federal court finds that the provision is unconstitutional, than it no longer has the force of law.

If congress thinks the president is being particularly abusive of his power, they can impeach him, and potentially remove him from office.

You also have to consider that a lot of bills passed by congress explicitly give the president authorities to make certain decisions, and this might not actually be unconstitutional because of that.

The affordable care act itself gives a lot of authority to the president and members of the president's cabinet.

Just search the bill for the word "secretary" or "president" to find things that the president or a secretary of the cabinet has the authority to do:

Now, bills like this one have numerous amendments and recursive language that makes parsing them harder than one might think, but whenever the president makes an executive order or does something that seems like changing legislation, it's normally because there's a law written by congress that says that he can.

Sam I am says Reinstate Monica

Posted 2013-12-20T04:42:36.943

Reputation: 6 956

1"You can bring the case to court" Without standing, it would be thrown out immediately, they would never "find the provision is unconstitutional," even if it clearly is. Your last sentence seems odd as well and could benefit from a quote of where in the ACA congress explicitly gave the president the power to allow these catastrophic plans. – user1873 – 2013-12-20T18:27:04.947

@user1873 you should read some legislation some time. It's full of phrases such as The president shall be authorized to appoint a comitte do this, and the secratary of state can do that – Sam I am says Reinstate Monica – 2013-12-20T19:15:24.080

you will note in the question above that Matt is specifically asking about unconstitutional changes to the ACA, namely the legality of catastrophic insurance that doesn't meet the minimum coverage necessary in the ACA (womans reproductive care, mental health services, drug/alcohol services, etc.) If you can point out where in the ACA the president has the power to allow these plans, you should do so. – user1873 – 2013-12-20T19:51:16.403

@user1873 there, I've put a divider between the parts of my answer that address unconstitutional changes in general, and the parts of my answer that express doubt on the unconstitutionality of the OP's specific answer. – Sam I am says Reinstate Monica – 2013-12-20T20:09:46.393

+1 So if the legislative branch abdicates its power to the executive branch through a law, there's little recourse then. That would seem to make the balance of power between the three branches extremely fragile. – Matt Davis – 2013-12-21T08:43:46.673

@MattDavis - It's delegation, not abdication. The legislative branch can always pass another law to modify or revoke the first one. It's just them saying "We don't want to have to deal with the details." – Bobson – 2013-12-23T14:58:09.770

@user1873 - Matt calling it "unconsitutional" does not necessarily make it so. He was asking about unconsitutional, but then gave an example that may not necessarily fit that description, which would mean that he's not so much asking specifically about unconsitutional, but rather changes he disagrees with and is characterizing in that manner. – PoloHoleSet – 2017-03-22T21:01:31.457


There is no constitutional recourse for this particular action by the executive branch.

The courts require standing to bring a case before them. Standing demonstrates to the court that the party is personally harmed by the law or action, and you can therefore participate in the case. A party would have standing if:

The party is directly subject to an adverse effect by the statute or action in question [...]

The party is not directly harmed by the conditions by which they are petitioning the court for relief but asks for it because the harm involved has some reasonable relation to their situation [...]

The party is granted automatic standing by act of law. [...]

The problem with standing, is it will be difficult to show how you are personally harmed by, "let[ting] people who lost coverage and are struggling to get a new plan sign up for [catastrophic] policies."

Removal of the President or HHS Secretary Kathleen Sebelius also wouldn't remedy the situation. Those hardship exemptions have already been made, so removing the bureaucrats who made those changes doesn't remove the change. That would require a new presidential appointment to change those regulations. With democrats controlling the majority of the Senate, it is unlikely Congress would remove either from office, no matter how much popular support it might be costing them.


Posted 2013-12-20T04:42:36.943

Reputation: 13 508

2The insurance companies would probably have standing, if they were to object. – Bobson – 2013-12-23T15:03:11.000

Someone who does not fall under the economic guidelines but wants a catastrophic plan might possibly have standing. – PoloHoleSet – 2017-03-22T21:02:41.877