If you thought the big fight over health care reform was last year with the passage of the Affordable Care Act (the “ACA”), or in the courts over its constitutionality, then think again.
Something every bit as big and as important is coming, yet.
Don’t get me wrong. The passage of the ACA was a serious battle and the law will still end up before the Supreme Court before all is done. But now that the law has been passed, and unless the Supremes decide it’s unconstitutional, there looms another battle, every bit as important and perhaps even more so.
The law isn’t even half implemented, yet, and the next step in implementing the law–the rulemaking–will involve a lot of lawyers and a lot of paperwork.
Once Congress passes a law, the proper agencies and departments of the Executive Branch take it and begin to issue “rules” for implementation. The process can seem complicated to those not well versed in it. Further, the bigger the underlying act of Congress, the more complicated the administrative rules can become. And weighing in at over 906 pages, the ACA is no small law. as James O’Reilly and Melissa Berry note that
[t]here is no question the [ACA] will result in a tsunami of new administrative rulemaking.[…] The rulemaking will be contentious, pitting politicians, agency heads, insurers, industry lobbyists, health care consumer advocates, and individuals against each other in a monumental battle to shape the regulations that will ultimately define health care in America.
(In “The Tsunami of Health Care Rulemaking: Strategies for Survival and Success” in the Spring 2011 Administrative Law Review published by American University Washington College of Law)
This “monumental battle” is all going on while federal courts are weighing whether the law is constitutional in the first place.
Don’t get me wrong: my intent is not to bash lawyers or their role in rulemaking under the ACA. Lawyers are only serving their employers’ interests, whether those employers are the Department of Health and Human Services, General Electric, AARP, or the Society of Healthcare Consumer Advocacy. It’s their job to see that the language drafted hurts their interest group as little as possible.
However, rulemaking is rulemaking. It is a relatively obscure process that benefits those who show up, those who are adept at the system, and, frankly, those who have lawyers, or better lawyers than others. If the fight to get it passed and the fight in the courts is any sign of how the process will go, then it’s going to be a messy and “monumental battle,” to repeat O’Reilly and Berry’s phrase.
- Rivkin and Casey: Why ObamaCare Is Losing in the Courts (online.wsj.com)
- The Commerce Clause argument in Sibelius v. Virginia, among others (After the Bar)
- President Obama Responds to HCR Challenges (After the Bar)