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November 14, 2013

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I. Glenn Cohen

Calvin,
I too would need to more clearly review the waiver provisions of the ACA and whether it covers this or not, but it is an unusually broad waiver, so much so that my colleagues David Barron and Todd Rakoff have called it "Big Waiver" http://www.columbialawreview.org/in-defense-of-big-waiver/ in their recently published work. I pass on the reference tot hat paper and its discussion of the scope of the ACA waiver in case it is helpful.

EVKontorovich

I agree its problematic, not simply because of the breadth of the waiver, but because it imposes new requirements alongside the waiver, or rather, conditions the waiver on very particular behavior not required by the statute.
See my Volokh Conspiracy post:
http://www.volokh.com/2013/11/14/constitutionality-obamacare-fix/

Jason Marisam

The ACA gives the Secretary of Health and Human Services the power to waive these requirements if the individual would suffer "hardship." 26 U.S.C. § 5000A. Depending on how one interprets "hardship," Congress may indeed have authorized the executive to waive the coverage requirement as Obama has done.

anon

(5) Hardships
Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.

Does this apply? How could it apply if coverage is available on the Exchange? Delays to date on the website are hardly a "hardship" it seems to me ... especially if the website is "fixed" by Nov 30 ....

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