Editorial counterpoint: 'Glitch fix' is another ill-fated Biden overreach

This month the Biden administration finalized a rule that will very likely add to its growing list of administrative actions struck down in federal court. The Star Tribune Editorial Board applauded this administrative fix to the so-called "family glitch," but never acknowledged the rule's nonexistent legal basis ("'Glitch' fix offers health care cost relief," Oct. 15).

This rule adopts a brand a new interpretation of the Affordable Care Act (ACA), expanding premium subsidy eligibility to more families through HealthCare.gov and state-based exchanges like MNsure.

We see the phrase "threat to democracy" used on these pages and elsewhere from time to time. This is one such threat. Federal rule-making with no basis in law undermines the rule of law — the cornerstone of our democracy. No one can act above the law, including the president. He can act only with the authority given by federal law and the Constitution.

In less than two years in office, Biden has displayed a striking disregard for the laws defining his authority.

Some red flags for presidential overreach include a president exercising authority never before exercised, implementing a new federal program or greatly expanding an existing one, and reversing a long-established rule.

Many of Biden's major policy actions raise these flags and have either been overturned by federal courts or are working their way through litigation.

For instance, Biden exercised new authorities to pause evictions during the pandemic, to mandate vaccines in the private workplace, and to mandate masks on public transportation.

He issued a first-ever order to stop new oil and gas leases. He implemented a new federal program to limit carbon emissions and broadly to restructure the nation's mix of electricity generation. He adopted rules to newly codify the Deferred Action for Childhood Arrivals (DACA) immigration policy.

All of these actions have been blocked by federal courts. A court has yet to strike down Biden's $400 billion student loan forgiveness program, but that's likely just a matter of time after multiple lawsuits were filed over the past month.

Biden's administrative fix to the family glitch adds to this growing list.

This might sound like a second-tier policy. However, Biden raised it up on the marquee at a White House launch event with former President Barack Obama. Moreover, Treasury estimates that as a result of the "fix" people covered on the exchanges will increase by about 1 million at a cost of $38 billion over 10 years.

What is the family glitch? The ACA does not allow people to qualify for premium subsidies if they have access to affordable employer coverage. The so-called family glitch arises because the law clearly bases the affordability test for the entire family on whether a worker's employment-based premium for "self-only coverage" — not the premium for family coverage — exceeds 9.5% of household income. This means family members don't qualify for premium subsidies even when the cost of the family premium exceeds 9.5% of income.

The legislative history confirms this plain reading and shows how Senate amendments narrowed premium subsidy eligibility for families by design. Why? At the time the family glitch served three useful purposes: It lowered the ACA's cost, reduced the incentive for employers to drop coverage and protected the individual market risk pool.

The Obama administration enforced this plain reading in a rule finalized in 2013 in the face of stiff opposition from their own friends among progressives. Notably, this rule was finalized only after Treasury reexamined whether there was an "alternative approach" at the request of the Government Accountability Office. They concluded there was not.

Biden is now reversing the Obama rule and, in the process, undermining the rule of law.

The Star Tribune editorial referred to the family glitch as an example "where errors in the law's drafting or interpretation persisted rather than being addressed."

It's true that Democrats in 2010 resorted to the budget reconciliation process to cut corners and pass the ACA on a party-line vote. As a result, the law includes several policies and mistakes that would never have become law if it had gone through the traditional House and Senate conference committee. Given more time, a bipartisan process might have rejected the family glitch. But its inclusion was no "error." It was part of the political horse-trading that got the ACA passed. It is the law.

Administrative rules draw litigation all the time. Imprecise statutory language often leads to reasonable differences. But too many of Biden's rules are of a different character — a reinterpretation of what had been considered precise language.

If Biden can erase $400 billion in student loan debt or expand premium subsidy eligibility to 1 million new people at the stroke of a pen, then we live under the rule of a man named Biden, not the rule of law. This is a dangerous path which can only lead to more and more Americans losing faith in our institutions.

Peter Nelson is a senior policy fellow at the Center of the American Experiment. He was formerly a senior adviser to the administrator at the Centers for Medicare and Medicaid Services focused on administering ACA-related health insurance programs and regulations.