Obamacare and Government by Blog Post

One of the more disconcerting aspects of following the Affordable Care Act, beyond the numerous delays and waivers announced weekly, has been the cavalier approach by which the government announces these changes. To say nothing of the merits of these significant changes, it is often difficult to find out why and how the government has justified these decisions. More often than not, the explanation will come in a blog post on the Department of Health and Human Services blog (often on a Friday afternoon). Or, perhaps if we are lucky, there will be a handy PDF explaining the changes in more detail.

After the blog posts, HHS hosts private conference calls (to which I am not a party to) in order to explain the new law. Why and how the government, subject to myriad open meeting laws, can host private phone calls, I cannot begin to explain. But don’t even think about quoting these secret government meetings.  Invariably, several media outlets will cite an anonymous source in the government, who (for reasons I can’t even begin to understand) demands anonymity when explaining how a rule (it is hardly law) they just made up impacts millions of people.

And then, maybe a few days later, we will receive a massive hundred-page document, explaining a whole host of new rules promulgated by the government–that of course were not subject to notice and comment. It has become a painful pastime of ferreting through these document dumps, and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. And, low and behold, another anonymous government official will explain what the law really is. Plus, some industry expert, also anonymous, will provide further clarification.

If you are getting mad reading this, try following the evolution of this chimerical law over the last few years.

This is no longer a government of law, or even a government of men. This is government by blog post.

Cross-Posted at JoshBlackman.com

Josh Blackman

Josh Blackman is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He is the author of Unprecedented: The Constitutional Challenge to Obamacare and also blogs at JoshBlackman.com.

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Comments

  1. nobody.really says

    So where are all the lawsuits regarding these changes?

    We may yet see them, of course. But it’s my impression that these changes represent a relaxation of requirements. Who has standing to sue that a law now requires less, or that a deadline was pushed back? Perhaps the insurance companies. We’ll see.

    But set aside legal technicalities: What specific harm is arising from these changes? And who is being harmed?

    No doubt, the ACA is complicated. If we had wanted a simpler system, we should have gone with single payer. Instead, we chose a complicated system that involves more “choice.” This is the nature of complexity.

    For what it’s worth, the practice of governmental agencies making vague pronouncements followed by hundreds of pages of fine print is hardly new. A regulatory agency will publish its agenda for an open meeting (“We will take up Docket Nos. A, Q, and X”), arrive, look at an thick stack of paper sitting before them, vote (“On Docket A, I move to adopt the staff’s recommendation.” “The motion passes without objection.”), and we may not see what was actually decided until months later. Sometimes the agency must act in time to meet a statutory deadline; the agency claims to have met the deadlines at the time of the vote – but the written decision isn’t issued until months after the deadline has passed. Hmmm…..

    • says

      But set aside legal technicalities: What specific harm is arising from these changes? And who is being harmed?

      I believe one objection to delaying the employer mandate is that the government was cutting Medicaid reimbursements, on the theory that since more patients would be covered, hospitals and providers would “need” less Medicaid dollars. The same principal applied to the medical device tax; since more medical devices would be going into people who were insured, the device manufactures could be taxed and it would be a zero sum. The Medicaid cuts were not delayed, and the gusher of insured patients did not materialize. There was an article about this in the Columbus Business Journal or some such. I can try and find it again if you are interested. So the answer to you question, at least in these limited circumstances, is hospitals and people who use them are harmed.

  2. gabe says

    Simply put it is a matter of adhering to the law. should changes be required that let the proper authority make said changes.
    Admittedly, there is some agency discretion – but far too many of these changes are beyond any such authorized discretion – such as changing the meaning of a “state exchange.”

    Also, just because an agency must meet a statutory deadline does not give it leave to disregard public comment provisions.

    (I suspect that your monitor may be working properly once again).

    take care
    gabe

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