The Obama Administration announced changes last Friday in dates relevant to open enrollment in 2014; it also announced that 2013 enrollees will have until December 23rd to pay for insurance coverage beginning January 1, 2014 (the previous deadline was December 15). We should expect more of the same as long as the Act is law.
The fact of the matter is that between the sweeping powers granted the Secretary of Health and Human Services under the Act and the Executive Office power of enforcement of laws the consent of Congress, and by extension that of the governed, is not required. Section 1311 Part 6 of the ACA deals with enrollment periods. This part, just like more than 1,500 others in the Act, begins with the words “The Secretary Shall…” If those words were a trigger for a shot of liquor in a drinking game of reading the Act, everyone would be under the table inside of a half hour. The President’s duty under Article II Section 3 of the Constitution directs the President to ”…take Care that the Laws be faithfully executed…” Various Presidents over the decades have greatly expanded the discretionary enforcement privileges provided under the term “faithfully”, but it is safe to say President Obama has optimized the concept of enforcement discretion.
The ACA was designed at the outset to hamstring the ability of Congress to affect it once it became law short of wholesale repeal (hence the serial votes by Republicans in the House of Representatives). We are now about to find out what that means. Very few citizens understand this, thus even though the Obama Administration will be working within the framework of the law, their discretionary actions will translate as “moving the goalposts” at whim to the general public. If you think that the polling numbers on the ACA are bad now, just give it a few more months. The Administration will likely respond to many issues with a discretionary decision because the Act means whatever it believes it means on a day-to-day basis.