On Obamacare’s “standing affront to the rule of law”


Yesterday I wrote a post detailing why Ramesh Ponnuru, in his opinion piece over at Bloomberg view, was using several developments in the implementation process of the Affordable Care Act (ACA) as simply a means towards reinforcing a preexisting conclusion. It’s not my intention to write a bazillion words trolling Ponnuru specifically, as I actually like reading him, but by way of a Cass Sunstein column I noted that this is a particularly normative reaction among conservatives.

Which is to say, every step along the path towards 2014 has been met with an interpretation that just so happens to conform with every single preexisting idea conservatives have ever had about the healthcare reform law. Some of these obstacles, like the Supreme Court ruling the Medicaid expansion optional, or the intransigence of House Republicans to do anything other than vote to repeal the law, are outside the bounds of the actual legislative language. These things seem irrelevant to most conservatives; no matter what happens Obamacare is (and seriously, at some point in my life I’ll never have to hear this word again) a train-wreck.

Ponnuru succumbs to this confirmation bias via a packaged list of his reactions to such recent developments as “inconvenient truths” for supporters. As I did yesterday with his contention that the ACA’s employer mandate represented a political weak spot by threatening people’s employer-sponsored insurance, these common arguments from the right are far from immutable facts and not even necessarily inconvenient for advocates — indeed, they’re easily debatable or not in disagreement.

This time I’ll address his second point, which is that “the Affordable Care Act is a standing affront to the rule of law.” Why? Because the administration is doing much of the reform grunt work through regulatory policy.

The specific objection conservatives have right now, as it relates to the ‘rule of law,’ is that the administration lacks the legal authority to delay the reporting requirement for the employer mandate. It’s also something Tim Jost addressed in his testimony to the Ways & Means committee (my emphasis in bold):

The employer responsibility provisions of the ACA, like
many of its other provisions, have an effective date of January 1, 2014.12. Arguably this is not true of the reporting requirements under sections 6055 and 6056, which apply “at such time as the Secretary may prescribe,” although the ACA seems to say that the reporting also must begin for 2014.13. I am informed that Treasury believes that it has authority to offer transition relief under its general rulemaking power under IRC § 7805(a). Also, the ACA requires the IRS to assess and collect in the same manner as penalties under subchapter B or chapter 68 of the Internal Revenue Code, and the IRS frequently abates penalties assessed under chapter 68.14. Under this analysis, Treasury has the authority to delay the reporting requirement and thus their enforcement of the employer responsibility provision.

This claim to authority could technically be challenged. The courts could rule against the delay if a lawsuit was brought forth proving injury from the lack of enforcement, but from a practical perspective it would very difficult to prove such an injury. As Jost continued to explain, even if you disagree with that analysis:

The Supreme Court in Heckler v. Chaney held that “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion.” Arguably the Administration’s decision to delay enforcement of the employer responsibility provision is within its discretion. But if it is not, a delay in enforcement is certainly not without precedent, and arguably delayed enforcement is better than non-enforcement, a policy that has been pursued by other administrations in other contexts.

Ponnuru’s, and other’s, contention that the ACA is a “standing affront to law” is predicated on the fact that many of the details — important, crucial details — in the law are left to the regulatory bodies that the Act empowers to carry out the legislation’s goals. Conservatives assert that this represents a unique usurpation of authority by the executive branch, flirting with the rhetoric of tyranny that’s common wisdom among the populist right. Yet, again, these aren’t so much inconvenient facts for supporters rather than selectively applied criticisms from Republicans when they don’t have a better argument.

The examples Ponnuru provides (Social Security, Medicare) were indeed approached differently. That was also a different time. Congress ceding discretionary authority to the executive branch in carrying out laws has been a 40 or 50 year process that’s been equally embraced by both political parties. That kind of general argument, on it’s own merits, is worth having a conversation over in my opinion. But this criticism from the right isn’t about that broad trend; it’s really only about the ACA. Jost was quite correct to say that such selective enforcement, when allowed by the legislative language, is not unprecedented. The financial reform law, Dodd-Frank, is similar in that much of the specific details are left to regulatory bodies to achieve legislative goals — just absent the rhetoric selectively applied to the ACA. The G.W. Bush administration chose not to enforce some parts of the Clean Water Act, yet somehow escaped the current aggrieved guffaw over delays in reporting requirements. Moreover, Republicans and conservatives seemed quite comfortable in proposing legislation that would have given the Obama administration discretionary authority over sequestration cuts. That idea somehow escaped the seemingly unique offensive nature of executive discretion as it relates to ACA.

Yet there’s an even better example of how silly this “affront” is coming from contemporary conservatives. I’m old enough to remember when the discretionary power of the executive branch over the ACA was invoked by the GOP presidential candidate to (drum-roll, please) unilaterally exempt everyone from the law. Was there a conservative outcry over Romney’s promise to fundamentally disrespect the rule of law? No, of course not. Questions of legality? Sure, as there (rightly) is now. Yet that was more in the spirit of “Cool, could he really do that? That would be so awesome.”

In that sense this objection from Ponnuru skirts the line of “doth protests too much.” Rather than being a principled protest of the merits on authority, it’s really about the targeted actions of that authority. Which, to be clear, isn’t a uniquely Republican phenomenon or even inherently disqualifying as a valid conservative criticism. To admit that, though, is to admit that such critiques of the law aren’t “truths” in a objective sense but merely a reconfirmation that conservatives just don’t like Obamacare.


One response to “On Obamacare’s “standing affront to the rule of law”

  1. Pingback: On Obamacare: polling, pathology, opposition | Punditocracy·

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