Repeal is the Only Way to Prevent a Zombie CLASS Act

After Health and Human Services Secretary Kathleen Sebelius admitted that she could not certify the Community Living Assistance Service and Support (CLASS) Act—ObamaCare's fiscally disastrous long-term care program—as financially self sustaining, the administration reluctantly shuttered the program, pink-slipping the actuary and reassigning other staffers. But the program was only suspended, not shut down. Republican legislators wanted to take it off the books entirely, but met with Democratic resistance. The Obama administration ended up in the awkward position of simultaneously admitting that the program would not work, opposing its implementation, and also arguing against its repeal.

The administration and its supporters said that repeal shouldn't matter since the program had been closed down. After all, can a buried program really be a threat? Turns out the answer is yes: If the program isn't fully repealed, there's still a chance it could rise from the grave, according to a new report by the Congressional Research Service. At Forbes, Avik Roy explains why complete repeal is the only way to prevent a zombie CLASS act: 

According to the text of the Affordable Care Act, Secretary Sebelius is required to "designate a benefit plan as the CLASS Independence Benefit Plan" by October 1, 2012. Back in November, the House Energy and Commerce Committee asked CRS to evaluate the question: based on this language, could advocacy groups file suit against HHS for failing to implement the program? Would a court be likely to side with these plaintiffs? According to CRS, it's a real possibility.

"If the Secretary does not designate a plan by October 1, 2012," write the CRS staffers, "this failure to act would appear to be the type of agency action that could be challenged under the judicial review provision for agency action unlawfully withheld." A court could grant deference to Sebelius' finding that the program was unsustainable, but it could also force implementation of CLASS by "declaring the Secretary in violation of 5 U.S.C. § 706(1) or issuing a write of mandamus to compel agency action, thus requiring the Secretary to renew her efforts to create a plan that is consistent with the statutory requirements."

Given the administration's opposition to full repeal, it's reasonable to suspect that this is exactly the possibility it's hoping to preserve. After all, the position of some liberal supporters of CLASS seems to be that the program is basically a good thing and the only real problem is that it lacks a mandate. Former White House budget director Peter Orszag suggested as much last year, and on Tuesday Democratic Sen. Tom Harkin declared that not only do we need "something like" the program, "the problem with CLASS is that it's voluntary."