Lawlessness: what this morning’s Obamacare announcement means

President Obama this morning announced that he would be issuing an administrative order—which requires no Congressional review—delaying the implementation of provisions of Obamacare that had led to the cancellation of a million or so insurance policies. This follows on the Administration’s similar delays of the Employer Mandate and the Individual Mandate. According to CNN, this morning’s delay is supposed to “cover millions of people who have had their insurance policies cancelled,” but the fact is that in many states, it won’t even do that—because insurance companies, anticipating the implementation of the new law, long ago decided to cancel these policies. Surprise!—except for the attentive observers who have been warning about this for years. Moreover, many states—including California—which are already going along with Obamacare are already beyond the Administration’s reach, because those insurance policies were cancelled by state agencies. This morning’s delay can’t do anything about that.

But there’s a much deeper problem at work here: the lawlessness of Obamacare, root and branch. The problems began with its initial enactment—first the Individual Mandate was supposed to be a “regulation of commerce.” That was unconstitutional, and the Supreme Court finally said no…only to rewrite the law by declaring it to be a “tax” instead. That doesn’t work either, though, because the Constitution requires that tax laws originate in the House of Representatives, and Obamacare began in the Senate. Meanwhile, the contents of the law—which members of Congress didn’t bother to read before they passed—gave away tremendous new powers to administrative agencies to write new rules to fill in crucial blank spots in the statute itself. For example, the Individual Mandate forces Americans to buy “minimum essential coverage”—but that term was left up to unelected bureaucrats in the Department of Health & Human Services to define later. And the law created a powerful new independent agency, the Independent Payment Advisory Board, and gave it power to write law about Medicare reimbursement rates without any checks and balances…and tried to make the law itself unrepealable.

Now come unilateral administrative delays on the order of the President. Keep in mind what these delays really are—they are not new laws, or amendments to the law…they are orders from the President to his subordinates to simply not enforce laws that are on the books. The Employer Mandate, for example, was “delayed” by an order that simply instructs Executive agencies not to enforce the reporting requirement. A company that fails to comply with that Mandate is still violating the law—it’s just that the President has chosen to look the other way for now.

The Constitution of the United States says that the President “shall take care that the laws be faithfully executed.” That provision was written because the Founding Fathers had experienced the arbitrariness of a government in which the British monarchy picked and chose which laws to enforce and which laws to ignore. The result of such political control over the law was, they knew, a breakdown in the rule of law—and a breakdown that allowed the powerful and politically well-connected to manipulate the system at will. As James Madison warned in the Federalist, “mutable” laws

poison[] the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Unfortunately, today’s administrative state gives so much power to unelected bureaucrats—who are protected against any meaningful control by voters—that they can alter, manipulate, and change the law almost at will. The result is a breakdown in the rule of law and an arbitrary system in which the government operates, not according to predictable standards and meaningful rules, but according to political whim and in arbitrary, day-to-day, ad hoc manner.

I’ll have more to say about this in my article (coauthored with my wife, Christina Sandefur) in the next issue of Regulation magazine.