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ObamaCare: The impossible enforcement of an unworkable law

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The ObamaCare website.Reuters

Does “ObamaCare” truly exist? Are we actually living with the law that was passed with so much fanfare four years ago?

I had to ask myself that question while reviewing the New York Times list of unilateral ObamaCare changes, a list that chronicles ObamaCare’s utter failure. Some highlights:

- A one year delay to the employer mandate.

- An additional year delay for medium-sized businesses.

Even the ideologues at HHS understand that the law won’t work, that it can’t work, and that the American people simply won’t stand for its full implementation.

- A one year grace period (no, make that three years) for non-compliant plans.

- Partial exemptions from the individual mandate.

The list can (and does) go on, and it doesn’t even include the recent, significant change to the Individual Mandate that the Wall Street Journal says “quietly repeals the individual purchase rules for two more years.”

How? By broadening the “hardship” exemptions significantly and then requiring proof of hardship by documentation only “if possible.”

In other words, if you claim hardship, it looks like the Obama administration is planning to take your word for it.

To be clear, if any Republican tried to force these changes on ObamaCare – changes that go far beyond the changes Republicans tried to force when the Obama administration shut down the government to preserve the alleged “law of the land” – they would be accused of sabotage or worse.

Yet President Obama is executing a rolling, piecemeal repeal of his “signature” legislation – unilaterally, without congressional cooperation or oversight.  He’s made at least 20 changes directly to an ever-changing law that’s constantly being amended through executive overreach.

Why?

Because even the ideologues at HHS understand that the law won’t work, that it can’t work, and that the American people simply won’t stand for its full implementation.

So far, the main effect of the partial implementation of ObamaCare has been to needlessly complicate (and increase the costs of) our already complicated and costly health care system. It certainly hasn’t put much of a dent in the number of uninsured Americans. 

Gallup says the number of uninsured dropped very slightly from 17.1% of Americans to 15.9% -- a result so insignificant that it’s close to the poll’s 1% margin of error and still 1.5% higher than the number of uninsured when President Obama took office.

Did you catch that? Almost four years after ObamaCare was signed into law – rammed through Congress via procedural trickery and against the will of the majority of Americans – a higher percentage of Americans are uninsured than before the law was passed.

How could this happen? 

Aren’t we hearing optimistic reports from Obama administration apologists that the exchanges are fixed and millions of Americans are signing up?

It turns out that of the few million people that have enrolled for ObamaCare on the exchanges, the vast majority were already insured

And then there's this: the Obama administration still won’t reveal how many enrollees have actually paid for their plans. HHS Secretary Kathleen Sebelius just told Congress she does not know.

Imagine if President Obama had made this sales pitch in 2009 when he was pressing the Democratically-controlled Congress to pass ObamaCare:

“My fellow Americans, I’m going to pass a health care law that will require millions of you to switch your health plans to a government-approved plan. For many of you, this plan will cost much more and have higher deductibles. When I finally get around to enforcing it on your employers, expect to see higher costs there as well. I’m doing this in the hopes that a small percentage of the uninsured can be coaxed into signing up. But we can’t be sure until we try, so let’s overhaul the whole system.”

But that’s what ObamaCare is – an overhaul of our health care system (and, by extension, much of our economy) built around an unrealistic hope.

It is perhaps too harsh to say that nothing is really working about ObamaCare. By the standards of the federal bureaucracy, the HHS is quite efficient at drafting, and then working with the Department of Justice to enforce draconian regulations that infringe upon the most basic religious liberties of both for-profit and non-profit employers, requiring them to purchase potential abortifacients for their employees.

The Obama administration can’t enforce its own deadlines and mandates, but it can put the Little Sisters of the Poor and Hobby Lobby in its crosshairs with remarkable speed.

Finally, it’s becoming clear that the Obama administration is intending to delay the full implementation of ObamaCare until after the president leaves office, leaving his successor with a series of nearly-impossible challenges. 

I would expect even the Democratic presidential candidates will have to campaign on reform, with some potentially advocating single-payer as the only way to fix the mess.

Republicans, of course, have the satisfaction of knowing they were right all along – ObamaCare was the wrong answer. But that’s cold comfort as our health insurance costs skyrocket and our choices narrow. 

The political challenge of “repeal” will eventually give way to the policy challenge of “replace,” -- the struggle to fix that which can’t easily be fixed.

Going back to the question I asked at the beginning of this piece, “does ObamaCare truly exist?” Not yet. Not really. And it never should. 

Our health care system can’t take much more of this president’s “reform.”

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He hosts a daily radio show, "Jay Sekulow Live," which is broadcast on more than 850 stations nationwide as well as Sirius/X satellite radio. Follow him on Twitter @JaySekulow.