December 18, 2013
MICKEY KAUS: Obamacare Escapes the Chains of Law.
HHS has pretty clearly escaped the rule of law and entered a world of corporatist haggling, where political leaders and a few big industry types sit around the table and work everything out. True, they have a mutual interest in doing so–Obama needs Obamacare to work, insurers are counting on it working well enough to make them money. The interests aren’t symmetrical though—at some point, long before Obamans give up on Obamacare, insurance companies could decide to cut their losses, bail, and go make money somewhere else. That gives HHS a motive to make sure they get enough money to keep them in the game: ‘Don’t worry, we’ll make it up to you later.’ This is a policy best announced at a small table in a noisy restaurant, not in the semi-judicial proceedings required for formal rulemaking under the Administrative Procedure Act.
It’s likely to end badly. I expect the Cruz Administration will vigorously pursue any lawbreakers.