The illegal implementation of Obamacare
...Note that by “administrative delays” Bagley is actually referring to multiple decisions made over many months, including the multiple delays of the employer mandate and the so-called “if you like it you can keep it” fix. Characterizing all of these delays as a single episode — one of the eight he examines — seems to stack the deck a little bit. Nonetheless, Bagley’s candor about the paltry legal justification for these actions is refreshing, even if he insists on stressing that there are still lots of legal rules the administration hasn’t violated. (As Mike Stern quipped, “Think of all the buildings Nixon didn’t break into.”)

Where Bagley finds admirable restraint, I suspect calculation. It seems to me the administration has strayed from the ACA’s text law when and where it thinks it’s difficult for critics to obtain judicial review, though other explanations are possible, too. In any event, the paper helps further a discussion about the appropriateness of what some consider administrative “self-help.” This is not the first administration to take liberties with a statute when Congress refused to cooperate (see, e.g., what the Bush administration did with the Clean Air Act), and it won’t be the last.

A real question is whether the Obama administration’s actions with regard to the ACA are an augur of what is to come in the future. I hope not, but there are reasons for concern. As Bagley notes in the paper, it is increasingly rare for legal commentators to flag the legal violations of those on their own “side,” and that’s a problem....

Aetna CEO Has `Serious Concerns' About Obamacare Sustainability
The head of the third-biggest U.S. health insurer said he has “serious concerns” about whether or not Obamacare’s new markets are sustainable, echoing criticism from other top for-profit insurers. “We continue to have serious concerns about the sustainability of the public exchanges,” Aetna Inc. Chief Executive Officer Mark Bertolini said on a call Monday while discussing the company’s fourth-quarter results. “We remain concerned about the overall stability of the risk pool.”...