Obama’s Fix for a Political Problem Stirs Legal Question

President Barack Obama’s health-care fix may salvage a political promise to let Americans keep cheaper health plans if they like them. Whether he has the legal authority to do so, however, could be a tougher question.

While the Affordable Care Act grandfathers some existing policies as written, it also sets new requirements for policies issued on or after Jan. 1, 2014. That spurred carriers to inform millions of consumers with plans that fell short of the new rules that their policies couldn’t be renewed after they expire.

“I am highly skeptical that they can do this administratively,” House Speaker John Boehner (R., Ohio), said Thursday. “I just don’t see, within the law, their ability to do that.”

The White House argues, however, that the chief executive has some discretion in implementing laws. Administration lawyers point to a 1985 Supreme Court decision, Heckler v. Chaney, which dismissed a lawsuit seeking to compel the Food and Drug Administration to exercise its enforcement powers.

The circumstances, however, were substantially different. The suit was filed by condemned inmates who argued that the FDA was required by federal law to review the drugs state officials had chosen for their execution by lethal injection.

The Reagan administration—whose lawyers in the case included now-Justice Samuel Alito—argued that courts shouldn’t second-guess the executive’s policy decisions regarding enforcement of the laws.

Even if critics believe the president lacks the authority to extend the life of substandard insurance policies, they may have trouble getting a court to hear their claim.

The Supreme Court long has held that a plaintiff must demonstrate an injury he wants redressed in order to get his day in court. The prisoners on death row certainly met that standard when they challenged the FDA in the Chaney case.

But it may be harder for a plaintiff to demonstrate an injury from being permitted, but not required, to renew an insurance policy they already hold.

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