NCPA - National Center for Policy Analysis

The Affordable Care Act and the Rule of Law

February 10, 2014

The Affordable Care Act (ACA) represents disrespect for the rule of law, say Christina and Timothy Sandefur, attorneys at the Goldwater Institute and the Pacific Legal Foundation, respectively.

The Affordable Care Act has not merely been a Web site disaster. Its problems began at its passage when it mandated the purchase of insurance or imposed a "penalty."

  • When the law reached the Supreme Court, five justices recast that penalty as a "tax," thereby upholding the law.
  • Law is supposed to be stable and fixed, and this type of legal reinterpretation does not promote confidence in the judicial process.
  • Moreover, if the penalty was in fact a tax, it would have to have originated in the House of Representatives, where the Constitution requires all revenue-raising bills to begin. The ACA, however, began in the Senate (when Harry Reid "amended" a House bill dealing with home purchase tax credits by erasing the text entirely and replacing it with something completely different: the ACA). A lawsuit is currently underway challenging this violation of the Origination Clause.

The problems only get worse with the actual text of the bill itself, which leaves a number of provisions open for administrative agencies to fill. And federal agencies have a wide array of discretion. One of the worst examples of this is the Independent Payment Advisory Board, a group of 15 appointees who will make decisions to reduce Medicare spending costs. The Board can unilaterally enact laws that take effect without a congressional vote.

The president has also used administrative authority to amend the law, delaying enforcement of certain provisions, despite the deadlines that were passed by Congress. The employer mandate was delayed in this fashion. Similarly, the IRS issued a rule applying certain employer penalties to states that did not build their own exchanges, despite the fact that the ACA does not authorize such penalties in those states.

These actions are not just a departure from the wording of the ACA, but they are illustrative of the serious delegation of authority from actual lawmakers to bureaucratic experts, who are insulated from electoral pressures. The ACA represents a breakdown in the rule of law and has done long-lasting damage to our constitutional order.

Source: Christina Sandefur and Timothy Sandefur, "PPACA's Corrupting Lawlessness," Regulation Magazine, Winter 2013-2014.


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