It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy.
Nicholas Bagley also has concerns:
I’m uncomfortable with the “enforcement discretion” justification. Because I haven’t yet seen a complete legal defense, I remain open to persuasion. As it stands, however, the administrative fix looks awfully vulnerable to legal attack.
President Obama, who used to be so sharply critical of George W. Bush’s use of executive power, is now pioneering his own expansive views of what the president may do. The White House seems to believe that they are allowed to shinny around any rule, as long as they wrote it. I’d argue that this is exactly backward: They have an especial duty to uphold the laws that they themselves constructed, because if they don’t, why should the rest of us go along?