The illegal implementation of Obamacare

The Obama administration has repeatedly flouted legal requirements or acted outside the scope of its delegated authority when implementing Obamacare. I've argued as much in numerous blog posts, congressional testimony and in a chapter on what I call the "Ad Hoc Implementation of Obamacare" in a new book, "Liberty's Nemesis: The Unchecked Expansion of the State." David Bernstein also makes this case in his book, "Lawless," as have others such as Iowa law professor Andy Grewal.

Criticism of the Obama administration's implementation of Obamacare from the administration's critics is not particularly surprising. Although some of us may have criticized equivalent Bush administration lawlessness, there's not much newsworthy about an administration taking fire from across the aisle.

It is more notable when a prominent defender of the Obama administration acknowledges that the administration has colored outside the lines, and not always with good justification. So those interested in the Affordable Care Act and the administrative law should give Nicholas Bagley's new paper on "Legal Limits and the Implementation of the Affordable Care Act" a careful read. The paper's still in draft form—and in my view bends over backward to provide the most charitable read of the administration's actions—but still concludes that the administration has violated the law repeatedly in implementing the ACA, even if not quite as often as some administration critics have claimed.

Bagley writes:

Taken as a whole, then, the record refutes the claim that President Obama has systematically disregarded the ACA's text or displayed contempt for legal constraints. He hasn't. To the contrary, the law still has bite. On occasion, however, the administration has strayed beyond legal limits. Two episodes raise especially serious legal concerns: the administrative delays and the decision to finance cost-sharing reductions out of an appropriation governing tax refunds. In both cases, Republican recalcitrance threatened to undermine the president's signal achievement. And in both cases, the president appears to have broken the law.

Note that by "administrative delays" Bagley is actually referring to multiple decisions made over many months, including the multiple delays of the employer mandate and the so-called "if you like it you can keep it" fix. Characterizing all of these delays as a single episode—one of the eight he examines—seems to stack the deck a little bit. Nonetheless, Bagley's candor about the paltry legal justification for these actions is refreshing, even if he insists on stressing that there are still lots of legal rules the administration hasn't violated. (As Mike Stern quipped, "Think of all the buildings Nixon didn't break into.")

Where Bagley finds admirable restraint, I suspect calculation. It seems to me the administration has strayed from the ACA's text law when and where it thinks it's difficult for critics to obtain judicial review, though other explanations are possible, too. In any event, the paper helps further a discussion about the appropriateness of what some consider administrative "self-help." This is not the first administration to take liberties with a statute when Congress refused to cooperate (see, e.g., what the Bush administration did with the Clean Air Act), and it won't be the last.

A real question is whether the Obama administration's actions with regard to the ACA are an augur of what is to come in the future. I hope not, but there are reasons for concern. As Bagley notes in the paper, it is increasingly rare for legal commentators to flag the legal violations of those on their own "side," and that's a problem.

Nowadays, the president can often count on support (or at least silence) from like-minded attorneys, legal academics, and other expert commentators. During the ACA's rollout, for example, almost no Democratic lawyers spoke out against the Obama administration's controversial legal moves, just as almost no Republican lawyers spoke in defense of them. Law, I fear, is increasingly seen as simply another move in a partisan game-a raw extension of politics with less persuasive force of its own. If that's the view of law that has enabled Congress to disregard legal conventions, why won't that same view lead to presidential disregard of similar self-help conventions?

At the end of the day, the story of the ACA's implementation leaves me equally encouraged and unsettled. Law still matters; it's not politics all the way down. At the same time, the Obama administration's legal violations don't appear to be idiosyncratic expressions of a particular president's governing style, but more-or-less inevitable reactions to polarization and the breakdown of governing conventions. While I'm skeptical that self-help conventions will reliably discipline such lawbreaking, I've got no better answers about how to restrain the president. That's why it's hard for me to shake the fear that we are entering an era marked by the relentless chipping away at the rule of law. I don't want to seem alarmist: for now, such chipping away is modest. But it appears poised to become a durable feature of American governance, with consequences I can't begin to anticipate. In contrast to some,162 I can't view that trend with equanimity. It seems to me that the rule of law is a terrible thing to waste.

On that last point, we certainly agree. Let's just hope the next administration doesn't view the Obama administration's efforts as a "how-to" guide for executive unilateralism.