We are now so jaded about the Affordable Care Act that it has lost the ability to shock us. News of its 38th delay in implementation is stirring up outrage from all the predictable quarters, but outrage isn’t shock. Everyone, supporters included, understands now that implementation means improvisation.
For many Americans, however, there’s nothing outrageous about broader health care coverage. No matter how clumsy and inefficient implementing the ACA may become, and no matter how bad the risk pool may become as a consequence, enough of us are captivated by the abstract principle of expanding coverage to ensure that repealing Obamacare remains an uphill battle at best.
That’s why so much of the debate over the legislation centers on whose lives the costs and benefits of delay will affect most. Only a relative few are concerned primarily with whether or not the administration’s improvised implementation violates the constitution.
Some delays appear to be more legal than others. On the whole, however, defenders of implementation make a strong case that its constitutionality is very unlikely to be successfully challenged. As former Carter administration policy hand Simon Lazarus observes, a broad range of scholars agree that the constitution’s phrasing grants the president wide latitudes in exercising judgment around the timing of law enforcement.
Indeed, writes Lazarus, justice departments under both parties historically agree that the president is authorized “to decline enforcement of a statute altogether, if in good faith he determines it to be in violation of the constitution.” Our founding document seeks to prevent the chief executive from refusing to enforce a law because he or she doesn’t like it. Obama isn’t opposed to Obamacare; his delays are in the service of full implementation; therefore, constitutionality is assured.
The Supreme Court embraced this logic of argument back in 1985. Yet, that’s not enough of a reason to wave away concerns that the ACA’s implementation marks, in some significant way, a disturbing break with American legal and political tradition.
Too few are willing to consider the sobering possibility that Obamacare is posing a threat to the rule of law so big that it’s outside the four corners of the constitution.
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