Do we pass laws any more?
I ask because of the reaction to the federal appeals court decision in Halbig v. Burwell, in which the court enforced what the Affordable Care Act actually says—namely, that federal subsidies for health insurance are available only through state-run exchanges and not through exchanges set up by the federal government.
This is important because the majority of states declined to set up those exchanges—deciding to reject a system and a set of obligations foisted on them by Washington. And ObamaCare is just a big, complicated mechanism for delivering subsidies. Without that, all it does is cancel everyone’s insurance policies and force them into more expensive plans they didn’t want. So you can see why ObamaCare’s defenders really need to keep those subsidies.
So they screamed that the court’s decision was totally ridiculous and implausible—and then up pops a two-year-old video from one of the Affordable Care Act’s architects, Jonathan Gruber, in which he clearly explains that this is exactly what the law says—that denying subsidies on the federal exchanges was a way of pressuring the states to get on board. More recently, Gruber has been telling everyone that this provision was just a typo and was never intended at all. He even claims his 2012 statement was also a mistake, a “speak-o.” Except that he said the same thing on at least one other occasion. So that gives you a good idea of the honesty of ObamaCare’s supporters.
But the big question is: why do they think they can get away with this? Why do they think they can write something into the law, go around for a couple of years explaining that provision to audiences, and then pretend later that it wasn’t there at all and it’s patently ridiculous for anyone to think it ever was?
Partly this a measure of crass partisanship, and partly it’s a measure of desperation. Without the subsidies, what happens to ObamaCare? And without ObamaCare, what does their messiah have to show for his presidency?
But this also fits into a larger context. They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.
This began with the antitrust laws, which banned “restraint of trade” without defining what that meant, leaving it to the courts to make the law as they went along—or, more often, leaving it to the arbitrary prosecutorial discretion of the Department of Justice and the FTC.
We’ve seen it more recently with the Supreme Court’s 2007 ruling allowing the EPA to control carbon dioxide emissions under the 1990 Clean Air Act, despite the fact that Congress had the opportunity to add such an authorization and declined to do so. The court’s reasoning was that the Clean Air Act gives the EPA power over everything in the air, and how it uses that power is up to the agency, not Congress, to decide.
This is also why ObamaCare was filled with exemptions and waivers and created a vast bureaucracy whose jobs were to write thousands of more pages of rulings about what ObamaCare would do. And this is why we had to pass the law to find out what’s in it.
With previous regulations, the abdication of power from Congress to the executive branch agencies was a way of evading responsibility for unpopular decisions. When executive agencies promulgate some outrageously costly or intrusive regulation, elected politicians can tsk-tsk and pretend it has nothing to do with them.
In this case, the ad hoc rewrites are driven by an implicit admission that Capitol Hill’s super-genius central planners could not actually project the law’s results or design a workable system. So when major parts of the law don’t work out the way they thought they would—one after another—they’re scrambling to save the system by reinventing it ad hoc. And they don’t want any fussy ideas about the letter of the law to get in their way.
The mentality behind this is on perfect display in the mental gyrations of one defender of ObamaCare, who goes so far as to claim that the definition of “state”—as in the 50 states—is unclear in the law, despite being explicitly defined multiple times. As ridiculous as this is, notice what use he makes of this alleged ambiguity.
What matters is that whether the wording was sloppy or deliberate doesn’t change the fact that it’s ambiguously written, which means you have to look at the context in the other thousand-plus pages of the law to figure out what the intent was…and the name of the law itself is the “Patient Protection and Affordable Care Act”. “Affordable” is right there in the name…and screwing over people in 2/3 of the country by making them pay 3-4x as much for their insurance as people in the other 1/3 of the country isn’t exactly “Affordable.”
Another defender chimes in with a similar argument:
Congress’s inconsistent use of the phrase “established by the State” gives rise to an ambiguity as to its meaning. And when you’ve got an ambiguity, it’s up to the agencies charged with interpreting the ACA to resolve that ambiguity. The tie goes to the government.
Get that? No matter how many impenetrable pages of verbiage were contained in the original law, it’s all equivocal and meaningless and can be endlessly reinterpreted by executive bureaucrats, so long as they believe they are working toward the aspiration named in the law’s title: “affordable care.”
That, ladies and gentlemen, is how we legislate now. What used to be a “law” is now just an open-ended grant of power coupled with a vague aspiration. Nothing in between, none of the actual concrete provisions of the law, has any meaning or makes any difference.
If you understand that context and that mentality, then you can see why ObamaCare’s defenders were so confident—and in many cases remain confident—that they get to skate on following the actual letter of the law. They believe no one will hold them to it, not the courts, not the press, not the public, because that’s the system they’re already living in.
It’s the way we legislate now, which is to say that we don’t pass any real legislation at all.
Follow Robert on Twitter.
