More Bad Law Ethics: Integrity Test Coming For The Judiciary On Obamacare

"Dear Courts: We intend this mess to be a big, perfect, beautiful palace. Please let us know when its finished.       Your Friend, Congress"

“Dear Courts: We intend this mess to be a big, perfect, beautiful palace. Please let us know when its finished.
Your Friend, Congress.”

In a recent post, I explained how the incompetent drafting and reckless manner in which the Affordable Care Act was passed has corrupted every branch of the government as well as damaged our system and the public’s faith in it. Affordable Care Act supporters continue to desperately try to excuse, fix, and rationalize this disgracefully bad law. Next up is an integrity test for the judiciary, as the legal argument against the US Court of Appeals for the DC Circuit’s decision in Halbig v. Burwell becomes untenable.

If the two judges on the three judge panel were correct, and it appears they were, then a drafting miscalculation in the ACA has rendered the health care overhaul unworkable, meaning that it can’t be fixed, constitutionally at least, by Executive Orders, waivers, delays or lies, like so much else connected to the legislation. It will have to be addressed the old-fashioned—as in “according to the Constitution”—way, or not fixed at all. Continue reading

Jonathan Gruber, Bad Law Ethics, The Corruption Of Democracy, And The Affordable Care Act

"Oh what a tangled web we weave..." You know the rest of Sir Walter Scott's famous quote. So why doesn't the Obama Administration?

“Oh what a tangled web we weave…” You know the rest of Sir Walter Scott’s famous quote. So why doesn’t the Obama Administration?

There are important democratic lesson to be learned from the ongoing Obamacare Ethics Train Wreck, and we could discuss them objectively if the beleaguered supporters (enablers? excusers? rationalizers? propagandists?) of the law would just start accepting facts rather than resorting to dishonesty in all of its forms. The law is a mess. The law is a mess because its proponents in Congress passed it without reading it, because the public was deceived and misled in order to pass it, and because Congressional leaders and the President, in addition to not reading  major legislation that have massive consequences to the nation’s population, businesses, and budget, pushed it through without the usual two House scrutiny and amendment process.

Fixing the mess, or trying to fix it, has caused as many problems as the misbegotten law itself. (Please note that I am not discussing the intentions of the law, or what good things it might accomplish for Americans show needed help getting health insurance. That is beside the point. Good intentions don’t make a good law, or a bad law good. Look at the chaos at the border generated by the 2008 anti-human trafficking law, when it was mixed with irresponsible Democratic rhetoric and administration policies suggesting that illegal immigration restrictions were a thing of the past where children were concerned. Yes: many Americans have benefited from the Affordable Care Act. That fact alone, stated without reference to all the chaos, uncertainty, corruption, division and misrepresentations that accompany it, does not mean the law has been a success.)

The law depended on a penalty for not buying health insurance, a penalty that Democrats insisted was not a tax (so the President didn’t have to defend a large tax increase.) But a penalty for not doing what citizens should be free to do was unconstitutional, so Chief Justice John Roberts, in the spirit of avoiding government by judge, allowed the ACA to slip by in a 5-4 decision by declaring that the mandate was a tax, regardless of what it had been called to get it passed, and thus was constitutional after all.

Then the President began delaying deadlines and waiving provisions in the law that weren’t ready to go into effect or that were obviously going to cause more embarrassments. This was an abuse of power: Presidents can’t change laws by fiat. It established a dangerous precedent that undermines Constitutional democracy and the Separation of Powers. But it’s a bad law, and an unpopular law; the Republican House obviously won’t agree to the fixes needed without also doing a major overhaul, and this is, in the ironic words we keep hearing, most recently by the New York Times, Present Obama’s “most significant legislative achievement“—how sad is that?—and must be preserved at all costs.

At all costs. So far the costs of the ACA have been complete partisan polarization, the public’s realization that the President who pledged “transparency” will lie repeatedly to get his way, judicial rescue or dubious validity, and the defiance of the lawmaking procedures delineated by the Constitution. And the ethics train wreck goes on.

In Halbig v. Burwell, the US Court of Appeals for the DC Circuit ruled that those who purchase health insurance under the Affordable Care Act are only eligible for federal tax credits if they do so through an exchange established by a state.  (Another court ruled otherwise.) The court did this because this is what the miserably drafted, rushed, never-read by its own champions actually says, stating that tax credits are only available to those who purchase insurance in an “[e]xchange established by the State.” Obama-propping pundits, Democratic officials and the Administration’s spokespersons have attacked and indeed ridiculed the decision, saying that he court should have refused to enforce the actual wording of the law because it creates an absurd result. After all, the ACA’s stated goal is to expanding access to health insurance. Why would Congress try to limit it in this fashion—I mean, other than the fact that they had no idea what the law they were voting for actually had in it, just a general idea about what it was supposed to do? Continue reading