Implementation: The Granny Panties of Law Making

By Kati Seeman

The process of turning a bill into law is glamorous: the intense debate, the threat of filibuster, the potential for a veto. Finally getting the president to sign a bill into law? Now that is downright Victoria’s Secret Angel sexy.

Once the drama is over and the pen is given away, the lawmaking process puts on its granny panties. The vote is over, and the law is staying in this Friday night. 

Photo by Eric Wustenhagen from Creative Commons

The implementation process, in the words of Department of Health and Human Services officials we met with, is part of “making the law come to life.” Rules and regulations made by agencies determine how the law will look. It is up to executive branch agencies to turn Pinocchio into a real boy. In the case of the Affordable Care Act, terms such as “pre-existing conditions” need a universal definition so the law is applied consistently.

Rule-making is a dry, length process. Agencies must publish in the Federal Register a notice of proposed rules and allow these to be commented on for a period that can range from thirty to sixty days. If all goes well, the final rule will be published with an effective date and a full explanation of not only why the agency acted how it did, but also identifying its legal authority. (For a full list of rules and regulations fun, click here.) Nothing about this process is speedy, and there is a good reason implementation isn’t in the news. It’s the high-cut ladies’ briefs of the law.

Regardless of how dull it is, implementation is no easy task. The Affordable Care Act is a prime example of the roadblocks agencies face throughout this process. If the initial launch of healthcare.gov didn’t give this away, I don’t know what will. The wide range of agencies affected by the laws and the need for clarification as to what the law actually will look like is a necessary, often overlooked step.

The bureaucracy isn’t just responsive to the legislative branch and executive branch when it comes to making rules. The Supreme Court has also played a crucial role in what implementation of the ACA has looked like in the country. National Federation of Independent Business v. Sebelius (2012) and Burwell v. Hobby Lobby (2014) made significant changes to the way the ACA would be put into place throughout the country, especially with regard to Medicaid expansion and coverage of contraceptives.

Regardless of the source of law, the agencies write the rules. Even if they aren’t the sexy models walking the runway of turning a bill into law, they are still getting the job done.

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