If you did not recognize Obamacare’s assault on the rule of law before, you ought to be able to see it now.
On Tuesday, the Treasury Department said a key part of the law — the mandate that companies above a certain size provide workers with health insurance — won’t be enforced until 2015, rather than next year as scheduled.
The political motivation for the delay is plain. As Montana Sen. Max Baucus has said, Obamacare’s implementation has become a train wreck. Keeping that up through the midterm election year is the last thing Democrats can afford as they try to give President Barack Obama unchecked majorities in Congress for his last two years in office.
But marking this move down to mere politics would not do it justice. It exemplifies the way Obamacare undermines the rule of law.
Treasury cited two goals for pushing the employer mandate back to 2015: “First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law. Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”
Translation: Almost 40 months after the law passed, administration officials still can’t make one of its key provisions work in real-life.
Employers have eyed the onset of their mandate with dread, largely because regulators were unable to tell them what the mandate actually required.
Absent reliable guidance, or certain there was no guidance forthcoming that would fit their business model, some have shifted that dread to workers by reducing their hours or moving them to part-time.
Why does all this uncertainty exist? The bill Congress passed may have totaled more than 2,000 pages, but it did not so much set policy as authorize various administration officials to set policy. Back in March, Senate Minority Leader Mitch McConnell said Obamacare-related regulations already surpassed 20,000 pages, with more coming all the time.
This flies in the face of American notions of clarity and predictability in the law. The axiom that ignorance of the law is not a defense for lawlessness only works if the law is knowable, which at least requires it to exist.
Three years after it passed, the Dodd-Frank financial reform remains in similar disarray. Barely one-third of the rules it requires have been created on time. Almost a quarter of them hadn't been proposed before their deadlines passed.
Even if rule-making were proceeding on schedule, there would be reason to question the way it is being done.
With Obamacare and Dodd-Frank, Congress delegated its authority to the bureaucracy. To a degree, this is unavoidable: Neither members of Congress nor their staffs can be experts in every subject on which they legislate, and flexibility can be useful.
But bureaucratic authority has passed an acceptable point. In a recent Washington Post op-ed, law professor Jonathan Turley reported that, “in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.” Meanwhile, from a federal judicial perspective, “a citizen is 10 times more likely to be tried by an agency than by an actual court.”
This unaccountable approach to the law erodes trust in government. And there isn’t much trust left to be eroded.
