Adventures in administrative law

Observers commenting on the administration’s latest improvisations in Obamacare have generally relied on the cheat sheet issued by the Department of Health and Human Services this past Thursday. The cheat sheet summarizes regulations promulgated by the Department. In his Forbes column “Government takeover,” Avik Roy posts a link to the regulations (interim final rule) here.

The regulations are an unusual exercise in rule by decree. Cloaked in an air of emergency, they strongly urge the provision of coverage by insurers to qualified individuals without compensation at the risk of being excluded from the Obamacare exchanges next year.

Don’t cry for the insurers, Argentina. I’m not saying they don’t have it coming. But it is a rather significant development in the history of the United States for the government to undertake such blatantly lawless action while eliciting so little resistance. As in the death of Willy Loman, attention must be paid.

Roy adds this cruel note regarding the Obama administration’s friends at PolitiFact:

In 2010, PolitiFact said that the claim that Obamacare was a “government takeover of health care” was its “lie of the year.” The Federal Register [publishing the regulations] disagrees.

I have a story idea for local news editors. Print out a copy of the regulations and assign a reporter to contact a teacher of administrative and/or constitutional law — Glenn Reynolds, say, who teaches both — to take a look. Assign the reporter the task of eliciting his opinion on the latest doings of the Obama administration underway in your hometown. (Helpful hint: Professor Reynolds can be reached via email: There just might be a story there.

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