Posted by Rojas @ 2:22 pm on November 14th 2013

“Obamacare is settled law…”

…except for the employer mandate, which can apparently be rescinded by the executive despite the fact that it’s a specified element of the legislation that Congress passed and the President signed. And also, except for the timetable for the creation of exchanges, which was also specified in the legislation, but which administrators can alter at a whim. And now, except ALSO for the provisions concerning which health plans are compliant with the law, which is ALSO apparently something that the executive can alter through what the Speaker of the House, ironclad opponent of any Republican tinkering with Obamacare, is calling an “administrative fix.”

I suppose that I support each of these reforms individually, but I cannot for the life of me figure out why each of them is not wildly, insanely illegal. These are not questions of implementation, they are EXPLICIT PROVISIONS OF THE LEGISLATION CONGRESS PASSED.

One thing is certain: the Democratic talking point that the debate over Obamacare was settled at the time the law passed is now kaput. If the legislation is open to random amendment by the executive, there can be no justification for excluding the rest of the people’s elected representatives from the process.

I did not see any of this coming. I thought we’d created a new entitlement that would outlive me and would gain currency as more and more people became clients. It’s not working out that way, is it?


  1. It’s funny – so my grandfather was a prominent Topeka attorney and state senator, and one of his jobs over the years was as the attorney for the Topeka School Board – in the first year following Brown v. Board of Education. It was his rather thankless task to help the board implement the Supreme Court decision – to their chagrin. Facing, on one side, people who were thoroughly against desegregation and thought the decision went too far, and people who were in favor of desegregation and thought the law didn’t go far enough.

    He managed to navigate an incredibly potentially wrought environment by hewing to the simple formula he always followed – what’s the law? His answer to both sides was literally the same. Don’t care – here’s the law. He wound up coming out of the job with the respect of both sides. Damned if they hated the law for one reason or another, but nobody ever had any qualms with my grandfather about it.

    Likewise, my uncle was a dean of a law school and has been a professor there for decades. And he views as one of his primary tasks disabusing first years of their desire to pontificate or policy-make or opine at great lengths about values debates. In his telling, every year, 90% of folks come in imagining Scopes Monkey or wanting to show how smart they are by bully pulpiting about this or that. They’re all debate geeks or blogheads or whatever wanting to hold huge discussions over the justness or efficacy of this or that. He just crosses all that shit of their papers or stops them in their tracks in the classroom. “Well and good,” he says. “So what’s the law say?”

    I know that’s the judiciary, but we’re in an era now where that viewpoint, one that my grandfather, my uncle, and me internalize to our bones, is basically antiquated.

    It started contemporaneously with the Authorization of the Use of Force – which basically built two wars, 12 years that have erased more than 200 years of precedent that came before it, and which built an entire multi-multi-trillion dollar entire national security and surveillance state on literally 120 words of a non-binding resolution (including preeamble and titles and whereasas, the entire document is 316 words). But Bush basically created a new era of governance where the executive takes all issues surrounding foreign policy national security (however they define it) as open to their interpretation.

    Obama has continued that precedent, and added to it an area of law concerning about a fifth of our economy and one of the most far-reaching aspects of domestic governance in America. Congress didn’t pass the law – they passed a law, and that’s justification enough to say “Health care – up to you”. There was some thin veneer of national security that maybe there’s a constitutional precedent to it – being wrapped up in national defense and foreign policy which are the areas MOST under executive purview naturally. But health care?

    We passed a low opening health care exchanges and now the President has taken it upon himself to decide what gets covered or not in American health care.

    Wait until that’s abortion. Or literally any aspect of medical care or public health in America under subsequent presidents.

    Comment by Brad — 11/15/2013 @ 4:14 pm

  2. Not surprise at all. It is going just as I expected it would.

    Comment by James — 11/17/2013 @ 5:01 pm

  3. Greg Sergeant passes on the administration’s (spectacularly weak) legal justification for their decision not to enforce explicit law here.

    A couple of additional thoughts.

    First, expanding on Brad’s point above, I can see no reason why the next Republican administration could not choose to do with the individual mandate what the Obama administration has done with the employer mandate, the implementation schedule, and the legal guidelines for plans. If I am correct about this, then there is zero possibility that the PPACA can represent a legacy of any kind for the administration: it will functionally cease to exist the minute an opponent takes the oval office. Of course, this is ALSO true of any and all other laws Congress has passed or passes in the future. If the Obama administration’s actions here are legal, then the law in the US really is exactly what the President says it is, and political backlash is the only constraint.

    Secondly: the President’s decision not to enforce the law does not, of course, change the law itself nor does it bind the judiciary in any way shape or form. Every insurance company in America is well aware at this point that they have ZERO protection from civil liability should they continue the established plan. Functionally, the President’s declaration does nothing in terms of keeping the plans in operation; they will not be reinstated because they represent a vast legal hazard for insurers. This is blame-shifting, pure and simple.

    Comment by Rojas — 11/18/2013 @ 6:17 pm

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