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Why Obamacare Is Still On The Legal Ropes After 4 Years (Forbes.com) August 4, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

The Affordable Care Act (ACA) is nearly 4.5 years old, yet it seems to have spent most of its life in one courtroom after another with its legal viability still hanging in the balance.  In a report issued last summer, the National Health Law Program had tracked 89 federal court challenges to the ACA.  And the recent decision by the federal D.C. Circuit Court of Appeals that subsidies under the law are only available in those few states that have developed their own health exchanges poses the greatest legal threat yet.  With two federal circuits reaching two different conclusions on that question, the ACA seems inevitably headed to the U.S. Supreme Court once again.

Some see Obamacare constantly brought before judges and find politics and judicial activism.  You may recall that President Obama himself jumped on that bandwagon prematurely, saying in 2012 that the U.S. Supreme Court finding the Act unconstitutional would be an “unelected group of people” turning to “judicial activism or a lack of judicial restraint.”  Ironically, in the view of many, Chief Justice Roberts ended up employing judicial activism, by reinventing a penalty into a tax, in order to rescue Obamacare on that occasion.  Columnist E.J. Dionne recently joined the chorus, calling the D.C. Circuit Court of Appeal decision on subsidies “extreme judicial activism.”  Of course one definition of judicial activism is quite simply a court decision with which you disagree, so all this hand-wringing must be taken with a healthy dose of salt.

In fact, I would submit that there are two very good reasons why Obamacare is still fighting for its life in the courts:  (1) It constitutes a complex and sweeping reform of one of our largest and most important social and business systems and, as such, (2) it was not enacted with sufficient care, debate and legal craftsmanship.

Obamacare is widely seen as the most sweeping social program since Medicare in the 1960s and Social Security in the 1930s.  As such, it also creates one of the largest government bureaucracies—at both the federal and state levels—seen in decades.  So, naturally, this was all done with great care, debate, compromise, amendment, and drafting over time, right?  We all know better.  One version of the bill ran over 2400 pages (the final weighs in at a mere 906 pages), leading to House Speaker Nancy Pelosi’s  clarion call in Washington-speak:  “But we have to pass the bill so that you can find out what is in it.”  And when this biggest and most important social legislation was finally passed, it was jammed through on a party-line vote, with no Republican support.

When Congress passes and the President signs a bill into law, most Americans fail to recognize that the legal work is only beginning.  Various agencies must then develop regulations and government structures to implement the law.  So far we have something over 10,000 pages (in very tiny type) of such regulation.  And then President Obama himself, through executive orders, has been unilaterally changing and delaying aspects of the law right along, arguing that more time is needed to draft and develop the implementing regulations and systems.

Is it any wonder, then, that Congress left a lot of clean up, and even correction of errors, now taken up in the courts?  As the old car repair commercial used to say, “you can pay me now (preventive maintenance) or you can pay me later (more expensive repairs).” If Congress had wanted to spend the time and bipartisan effort to get things right from the start, perhaps many of these questions would not have ended up in court.  Is it a tax or is it a penalty, for example?  In the end, Justice Roberts felt he had to rewrite the law to make that clear.  If Congress didn’t intend the subsidies to be limited to states that created their own exchanges, couldn’t that have been debated and clarified in a congressional committee, rather than in various federal district and circuit courts?

Unfortunately the most sweeping social legislation in 50 years is now getting the care and debate in courts that it should have received, but did not, in Congress.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/08/04/why-obamacare-is-still-on-the-legal-ropes-after-4-years-2/

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