Commentary Magazine


For ObamaCare’s Enemies, the Law

In my discussion recently of the scourge of bureaucratic lawmaking during the Obama administration, I’ve generally focused on federal agencies enacting rules that could not be passed by Congress, thus undermining the democratic process. But another important problem posed by the “rise of the fourth branch” of government, in Jonathan Turley’s phrase, is the treatment of duly passed legislation that simply empowers federal regulators without limiting them.

That’s not necessarily the fault of Congress, though it is a warning to those who seek to pass complex pieces of legislation. In the case of ObamaCare, it is simply the president who has decided that he has the power to suspend and postpone parts of the law at will, or else hand out waivers to favored constituencies. Though the beneficiaries of such governance seem obvious–the president and those who receive the favors they request from him–there is actually a third group whose members benefit greatly: the crafters of the law.

Conservatives often talk about the ill effects of moral hazards in politics. And the Hill reminded us over the weekend that the more complex the law, the more ad hoc its implementation, the more room for its interpretation, and the more troubled its legal groundwork, the more the crafters of the law stand to gain. The worse the governance, the better off its practitioners, at least in certain situations, will be. The members of Congress who voted for ObamaCare may not understand the law, but those who wrote it do–and are cashing in on the regulatory monstrosity:

ObamaCare has become big business for an elite network of Washington lobbyists and consultants who helped shape the law from the inside.
More than 30 former administration officials, lawmakers and congressional staffers who worked on the healthcare law have set up shop on K Street since 2010….

“Healthcare lobbying on K Street is as strong as it ever was, and it’s due to the fact that the Affordable Care Act seems to be ever-changing,” Adler said. “What’s at stake is huge. … Whenever there’s a lot of money at stake, there’s a lot of lobbying going on.”

The voracious need for lobbying help in dealing with ObamaCare has created a price premium for lobbyists who had first-hand experience in crafting or debating the law.
Experts say that those able to fetch the highest salaries have come from the Department of Health and Human Services (HHS) or committees with oversight power over healthcare.

The most telling quote in the story, and the one that explains why ObamaCare belongs in the discussion of unaccountable bureaucracy usurping congressional authority, is this:

“Congress is easy to watch,” said Tim LaPira, a politics professor at James Madison University who researches the government affairs industry, “but agencies are harder to watch because their actions are often opaque. This leads to a greater demand on K Street” for people who understand the fine print, he said.

The delays and postponements and waivers so far have made it pretty clear that the Obama administration finally understands just how harmful ObamaCare is, but this hasn’t troubled them so much because they don’t feel bound by the law. The administration is the law, with regard to ObamaCare.

What recourse do you have if you are not part of Obama’s favored constituencies to whom the law doesn’t apply? You have the courts. In a sign of how problematic ObamaCare really is, it appears headed back to the Supreme Court because of the law’s unconstitutional abridgement of religious freedom. As the Hill reported late last week:

ObamaCare’s birth control mandate is putting the president’s signature legislative issue on a fast track back to the Supreme Court. 

Lawyers on both sides of the issue say the high court will almost certainly have to rule on the controversial policy, possibly as early as its next term. 

Two federal appeals courts have come down with opposite rulings on an important question related to the policy: whether for-profit businesses and their owners have the right to challenge in court the requirement that businesses provide contraception as part of their insurance coverage.

As Jonathan wrote in June, the high-profile case of the Hobby Lobby, a chain of stores owned by religious Christians, won a key victory this summer, though there have been setbacks in other similar cases. But the Hill story points out just why the battle over the contraception mandate is so important:

“Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” the 10th Circuit asked. “The kosher butcher, of course, might directly serve a religious community … But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections.”

The administration’s position, and that of some appeals courts, has been that the religious freedom of the owners of a corporate entity does not transfer to the company itself. That is, there is a separation between the business and its owners, and religious freedom applies to the latter. A company can’t pray, goes the simplistic logic.

Of course, the 10th Circuit judges had it right. The contraception case is important because it will set precedent on the issue, and will determine whether United States law considers religious practice a privilege, not a right, when it conflicts with the government’s agenda. In this way, it won’t be much different from the rest of ObamaCare’s arbitrary and corrupt implementation.

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