Michael Greve makes three worthwhile points in this post.
1) “Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.”
2) “This ‘process’ has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t.”
3) “[T]he entire Affordable Care Act, from coverage mandates to health exchanges to tax penalties, is being implemented by waiver and interim regulations. It can’t be implemented any other way: the insurance markets would collapse, and we’d still be noticing and commenting in 2020. A statute that compels the systematic corruption of the rule of law has no place in the U.S. Code.”