Laws Change or Are Repealed All the Time

In the final scene of Brian DePalma’s 1987 film, The Untouchables, screenwriter David Mamet depicts a reporter asking Kevin Costner’s Elliot Ness what he plans to do should Congress overturn Prohibition. The stoic U.S. Treasury Agent and buster of such bootleggers as Al Capone responds: “I think I’ll have a drink.”

This scene came to mind repeatedly over the past several weeks in light of attempts to defund, delay or downright discard the Affordable Care Act. Television talking heads, the blogosphere,  newspaper op-ed pundits and the president all joined in the resounding chorus that ACA is now “the law of the land,” a “fact” to be acknowledged as a precondition for “moving on.”

Well, if my movie history has it correct, the Volstead Act and the 18^th Amendment also once were the “law of the land.” Either they were repealed some time ago or sponsorship and naming rights for Denver’s Coors Field derives from some type of non-alcohol energy drink. Likewise, Wyoming Whiskey is nothing more than a breakfast condiment for pancakes and waffles.

“But,” some readers may point out, “we’re talking about health care and not hooch.” Fair enough. My rejoinder is the 1988 Medicare Catastrophic Coverage Act. Remember? If you don’t, it’s not terribly surprising due to the fact it was repealed by Congress in 1989.

In the interest of intellectual honesty, laws are passed, repealed and modified all the time. And so it goes with ACA. Furthermore, it should go without saying that portions of ACA have been scaled back, delayed or put aside by the president who has made it his signature bill – regardless constitutional separation of powers forbidding him to do so.

One of the ACA delays is the employer mandate, which has been pushed back one year. As Jon Stewart, the left-of-center anchor of Comedy Central’s The Daily Show, indicated in his epic confrontation (approximately at the 15-minute mark, includes some bleeped profanity and commercial breaks) with Health and Human Services Secretary Kathleen Sibelius, why give businesses a waiver when individuals continue to take it on the chin?

Stewart, a self-professed advocate for a single-payer system, nevertheless skewers Sibelius for dancing around his pointed questions regarding delaying the individual mandate as well as the shockingly awful technology glitches accompanying last week’s ACA online rollout. Before setting up for a commercial break, a frustrated Stewart asks Sibelius if he can ask her questions when they return from the break, and – pointedly after she cheerily responds in the affirmative – asks if he can ask her the same question to which he had yet to get a clear response.

Stewart closes out the program by wondering aloud if Sibelius had been lying to him. Lest readers think him unnecessarily harsh on the country’s head cheerleader for ACA, Stewart neglected to remind Sibelius and his viewers that not one of the estimated 365,000 uninsured citizens in her home state of Kansas was able to enroll successfully in ObamaCare on its opening day.

What Stewart, David Mamet, the Congressional class of ’89 and the fictional Elliot Ness recognized was that laws can be changed or repealed at any time – even sometimes before they’re fully enacted. So let’s dispel with these disingenuous arguments that ObamaCare is somehow the irrevocable law of the land when it’s never been the case for any law. Nor should it be, especially for a law that is as monumental a train wreck as ACA.