If your first thought upon reading the headline to this post is that I could have stopped after the second word, you’ll love this update to the ongoing disintegration of ObamaCare. Last week, several observers noted that ObamaCare had already missed a third of its legal deadlines. But over the weekend, constant ObamaCare gadfly (and former Mitt Romney campaign adviser) Avik Roy tallied up the failures in a recent Congressional Research Service report and concluded it’s more like half. Roy lays out the scorecard at Forbes:
The CRS, Congress??? non-partisan in-house think tank, compiled 82 deadlines that the Affordable Care Act mandates upon the first three years of its own implementation. Remarkably, it turns out that the White House has missed half of the deadlines legally required by the ACA. And some of those deadlines remain unmet to this day.
The CRS tally is quite generous to the ObamaCare commissars, as it includes only the deadlines that were under direct Administration control:
The new CRS memo, dated June 5, 2013, is an addendum to a series of previous reports in which the agency examined missed deadlines during the law???s first two years. The CRS excluded from its analysis deadlines that don???t reflect on the administration???s competence; for example, as states expand Medicaid, the federal spending associated with those expansions occurs more or less automatically. Deadlines that the law imposes on non-federal government actors, like state governments and private companies, were also excluded.
Even so, the results of the CRS analysis make the breathtaking scale of ObamaCare’s failure painfully clear. And it doesn’t even include the delays in the employer mandate and out-of-pocket insurance caps, the two most famous blown fuses in the Affordable Care Act system, since they happened after the report was prepared.
As of May 31, 2013, when the CRS analysis was completed, the White House had yet to meet 9 of 12 deadlines from the first year after the Affordable Care Act was enacted. It failed to meet 22 of 53 deadlines in the second year; another 8 became moot after Congress did not appropriate funds to complete the assigned tasks. In year three, the administration missed 10 out of 17 deadlines. That???s a total of 41 out of 82 deadlines missed.
If you exclude the 9 deadlines that became moot because Congress never appropriated the funds to meet them, the Obama administration missed 41 out of 73 deadlines, or 56 percent.
As Roy duly observes, some of these deadlines were for “bureaucratic busywork,” including reports the Secretary of Health and Human Services was required to produce. But to my mind, that makes the level of ObamaCare failure even more remarkable. The Department of Health and Human Services became the most powerful agency on Earth after the implementation of ObamaCare, and its Secretary became the most powerful un-elected bureaucrat the Western world has ever seen. But she couldn’t be bothered to submit reports on time? ObamaCare is already running vastly over budget. Where did all that money go?
A lot of these missed deadlines have big dollar figures attached to them, so the CRS report is another way of saying that ObamaCare costs a lot more than its proponents claimed it would, while performing far below their promises. But it’s disingenuous to refer to these failures as missing “deadlines,” because there are no consequences. A “deadline” implies that something bad will happen if you don’t meet it. If you miss any of the deadlines ObamaCare imposes on the American people, there will most certainly be consequences. But not even blowing over half the “deadlines” stipulated by the Affordable Care Act makes any difference to the relentless march of ObamaCare. It’s like paying big money for a cable-TV package and being told the installer will show up whenever he damn well feels like it, but in the meantime you’d better not miss your scheduled payments, or else.
This is another illustration of how ObamaCare deals fatal damage to the rule of law. A “law” that can be safely ignored by the government, while placing iron restrictions on the citizens, is not a “law” at all, at least under the American understanding of the concept. For many years, Western governments have declared despots and dictators to be “illegitimate” rulers of their nations. There’s no way to square ObamaCare with any reasonable definition of legitimate government. It places endless obligations upon citizens, while the Administration feels no reciprocal obligation to obey anything in the Affordable Care Act that it finds inconvenient.
Roy grimly reminds his readers that as long as government permanently expands and gets to spend a few trillion dollars, the people who inflicted ObamaCare on us will consider it a roaring success. They’re betting that middle-class dependency on ObamaCare subsidies will pour enough political concrete to keep this thing limping along forever, no matter how badly it fails.
Any rational observer would conclude that a massive, deeply unpopular program that has already failed over half the performance tests specified at conception should be shut down and subjected to major retooling, if not scrapped entirely. The editors of the Chicago Tribune meditates on the damage to the rule of law when they write, “Let’s delay and rewrite this ill-conceived law:”
The Affordable Care Act, aka Obamacare, is a hugely complex law that sets up online health insurance marketplaces, requires people to have coverage or pay penalties, and doles out subsidies and incentives to nearly everyone in health care. Doctors, hospitals and insurers have spent large sums to gear up for its requirements. Employers are mulling: Hire? Fire? Cut workers’ hours?
Millions of Americans, that is, stand to gain or lose from how this law is enforced ??? with the Obama administration bending that enforcement in ways that test, and arguably exceed, the boundaries of lawful conduct.
Every time the White House undercuts one provision of Obamacare, there is a massive ripple effect on other provisions. It’s generally a zero-sum game: When someone gains, someone else loses. Example: When employers are relieved of their mandate to provide insurance, taxpayers risk having to subsidize more of those companies’ employees.
The administration asserts that it can make these changes under the president’s broad executive authority. Yet critics make a compelling argument that the president is stretching the limits. Former federal appellate Judge Michael McConnell, director of the Constitutional Law Center at Stanford Law School, writes in The Wall Street Journal about a different sort of mandate: the mandate in Article II of the Constitution that the president “‘shall take Care that the Laws be faithfully executed.’ This is a duty, not a discretionary power. … As the Supreme Court wrote long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes ‘would be clothing the president with a power to control the legislation of Congress, and paralyze the administration of justice.'”
It’s a measure of how far the Republic has fallen that citing the Constitution’s crystal-clear instruction that the chief executive has a duty to execute the law is described as merely a “compelling argument.” As if there’s an equally “compelling” counter-argument that no, the Founders thought a despot would be just fine, as long as he thinks it’s really, really important to break the law.
A law that can only exist if the government flagrantly violates it is no law at all. It’s an exercise of power unbounded by law, a devil’s contract that only the hapless American people are obliged to obey, keeping up their end of a “deal” that most of them never wanted in the first place. Strict adherence to deadlines should be even more important as the size of a government program increases, but the modern American ruling class takes the opposite view: the more power they grab, the less obligation to honor promises, or face consequences, they feel. Congress even got priceless special waivers so they won’t have to live under the obligations that are crushing American businesses from coast to coast. ObamaCare is completely incompatible with the American model of government; its continued survival represents the defeat of the American ideal.
The Chicago Tribune editors are too timid – there’s no way to salvage the ObamaCare mess, because its founding assumptions are deeply flawed. But at least they’re on the right track when they recommend delaying the entire system, so we can have the debate we didn’t have during the mad rush of backroom deals, fraudulent cost estimates, and midnight votes in 2010. No matter how many despotic powers he seizes. Barack Obama can’t seem to make this train wreck run on time.