Tuesday, June 30, 2015

Want 'Proof' That The 'True Legislative Intent' of Congress Was To Create State Exchanges in 2010?

'I wonder if that young man knows what he is doing'
'Maybe I shoulda run for Congress
where I could really write laws'
Were you confused, shocked, horrified or just plain old confused last week when the Supreme Court handed down its decision on the tax credits for the state exchanges?

Join the club. We have long thought the US Supreme Court should rule on the matter of the law at hand and not try to rewrite or divine the intention of the legislative process with a Ouija board or whatever they used to write their latest ACA proclamation last week.

Last week's decision on the ACA made us really wonder if that was true anymore. There's a very simple reason why which we will explain later in this post.

The latest decision by the Roberts Court on the ACA comes down to this:
'Do you want the US Supreme Court in effect 'writing' legislation as the Roberts Court did last week again on the ACA? Or do you want Congress and the US Senate to do their job and write legislation and leave it up to the Supreme Court to say 'yes' or 'no' as to its constitutionality as written on a piece of paper and leave it at that?'
Without being completely disrespectful of the Supreme Court and trying to honor their intellect, training and education, we have to wonder if it might have been a good idea for Chief Justice Roberts and every other Supreme Court Justice to spend some not insignificant amount of time on Capitol Hill watching the meat-grinder of legislation up close and personal before being appointed to the Highest Bench in America. We know he and the other 8 Justices are supremely qualified and educated and worthy of all respect and praise and honor due them.

Laws being written on Capitol Hill. Or
laws being re-written under judicial review
by SCOTUS.  Take your pick.
However, we think he and the majority missed a key major point on this one, one that even untrained-in-the-law people such as us could have told them to consider had they just asked us. Or anyone else who is familiar with the process and politics of writing legislation on Capitol Hill.

German statesman Otto Von Bismarck is credited with coining the best phrase we have ever heard about legislation:

''If you like laws and sausages, you should never watch either one being made.”


Unless you have seen the process up close and personal, you also may have missed the one little fact as well that seems to have eluded Justice Roberts in the ACA judicial review process. He has now not only once but twice 'saved' the ACA by a rather open-minded, shall we say, interpretation of the 'legislative intent' of the Democrat majorities then in control of the entire machinery of our government from 2009-2011 as opposed to what they actually wrote down on paper in legislation.

Chief Justice Roberts wrote the majority 6-3 decision upholding tax credits for people who sign up for the ACA regardless of whether or not the state in which they live had established their own 'state exchange' versus a 'federal exchange'. In essence, he looked into his crystal ball to look backward in time and decided that Congress conflated the two exchanges and really meant 'federal exchanges established by the states' all along.

Chief Justice Roberts has solidified his view that the Supreme Court has a critical role at identifying precisely what the 'legislative intent' was of Congress at any time in the past. Even though Congress has 435 elected representatives, 100 Senators and hundreds of highly educated, trained and skilled lawyers, attorneys and bill drafters to craft legislation in the first place.

Congress might be clownish at times in their deliberations and public announcements. But they do have extremely well-qualified legal staff to write legislative language exactly as the chairmen, the Speaker, the Majority Leader and the majority of the Members of the US House and US Senate at the time want them to write it.

What struck us first was how this decision clearly overlooked, or at least managed to masticate to death in a very tortured way, the language as written about the state exchanges in the ACA which is about as clear as day according to anyone who has read it. From the Roberts decision (which you should read for yourself):
'The Affordable Care Act addresses tax credits in what is now Section 36B of the Internal Revenue Code. That section provides: “In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle . . . an amount equal to the premium assistance credit amount.” 26 U. S. C. §36B(a). Section 36B then defines the term “premium assistance credit amount” as “the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year.” §36B(b)(1) (emphasis added). Section 36B goes on to define the two italicized terms—“premium assistance amount” and “coverage month”—in part by referring to an insurance plan that is enrolled in through “an Exchange established by the State under [42 U. S. C. 18031].” 26 U. S. C. §§36B(b)(2)(A), (c)(2)(A)(i)
Not to belabor the point that we used to work up on Capitol Hill, but we did. Long ago. Back in a time when people were very careful about what they wrote into legislation because the misplaced comma or semi-colon could mean 2 very different things once enacted and signed into law by the President on any bill or piece of legislation that moved through congressional deliberation.

What we don't understand about the Chief Justice of the United States Supreme Court's thinking here is that there is a very simple way for Congress and congressional staff to fix legislation once passed if they find a mistake or a typo or an incongruity or 2 or 3 or 1000 as seems to be the case in the ACA.

That process is called 'technical corrections'.  If a law is found to be askew in any way once passed, another bill is written to correct the typos and incongruities of a law which is called 'The Technical Corrections Bill' to whatever the underlying piece of legislation was that was recently passed.

Think of it as the 'spellchecker' or at least the 'grammar/punctuation/English language clarifier-checker' function of the US Congress to make sure laws are passed as intended and as amended through the normal majority-vote legislative process.

More times than not, it is passed unanimously without a lot of comment or debate because it doesn't change the 'legislative intent' of the Congress that passed the law in the first place.

These technical corrections bills usually are passed within months of passage of the underlying base core text bill.

Let's look at a timeline of the passage of the ACA:
  • March 30, 2010 ACA becomes effective as the law of the land.
  • Democrats controlled the White House (President Obama)
  • Democrats controlled the US Senate by 58-to-60 votes during the entirety of the 111th Congress
  • Democrats controlled the US Congress by 255-180 majority for the entirety of the 111th Congress
  • ACA passed without a single Republican vote in the US Senate or US House
  • ACA was passed by the process of reconciliation despite having 59 Democrat votes in the Senate
In other words, the Democrats controlled everything lock, stock and barrel at the time of passage of the ACA.

Why does this make any difference?

It makes a difference because at any time for the rest of the 111th Congress from March 30, 2010 to December 31, 2010, if there was any ambiguity about what the Democratic Congress meant about any single word or phrase in the ACA, they had 9 WHOLE MONTHS to correct it through a technical corrections bill they could have passed by overwhelming margins and sent to President Obama for his signature.

Right then and there, the whole nation would have found out if by writing 'state exchanges', that Congress actually meant 'federal exchanges set up in the states'. The Democrats in 100% complete control of the US government from 2009-2011 had their chance over 9 long months in 2010 to clear things up and make their legislative intent explicit and not leave it up to Chief Justice Roberts and 5 other non-elected Justices to make those decisions for us as a nation 5 years down the road.

You can not tell us that not one single person on the Democratic staff of any Democratic Senator after the passage of the ACA noticed the 'ambiguity' Chief Justice Roberts points out in his decision between states that specifically had 'state exchanges' as qualifying for the tax credits versus those that did not set up their own exchanges and left it up to the federal government to come in and set one up.

Maybe no one actually ever read this 2000+ page bill in its entirety before it was passed as then-Speaker Nancy Pelosi said. Not even Jonathan Gruber. Not even Constitutional-Scholar-In-The-White House, President Barack Obama.

Republican staff people were already pointing this anomaly out almost immediately upon passage of the ACA. Legal scholars around the nation started preparing arguments for lawsuits almost as fast as the Tea Party exploded onto the scene in the aftermath of the ACA. One of the most prominent points of contention was this very language cited by Chief Justice Roberts as being 'ambiguous'.

From where we stand, this looks like it was a deliberate attempt by the Democrat Majority at the time to write a bill to force states to set up their own state exchanges in order to qualify for the tax credits for the people who enroll in them.

You have to remember that there was another coercive feature of ACA that sought to penalize states that did not expand Medicaid by refusing funds for the entire program which the Roberts Court found to be unconstitutional on June 28, 2012. Presumably on states rights grounds you gotta believe. This provision fits in the same frame of thinking that the Democratic Congress at the time had in mind to coerce and force each state to set up exchanges whether they wanted to or not as well as expand Medicaid under threat of losing federal matching funds for the entire program.

The thinking would go as explained by a fictional majority staffer at the time:
'We need something to force every state to comply with the new law to get everyone covered by insurance. Otherwise the funding for the ACA really doesn't work at all. We need to set up state exchanges with tax credits to entice or force the states to offer such coverage along with banging them in the head to expand Medicaid by threatening to withhold matching funds from them for the entire Medicaid program'

Political staffers think like that. It is part of the game.

Do you really think the conversation between Democrat staffers on House Ways and Means, Senate Finance and the Health Committees in both the House and Senate that had jurisdiction over the bulk of the ACA went like this?
'You know, this language in the ACA really is a mess. We didn't call the 'penalty' a 'tax' in the first place because that would have killed it as one of the biggest tax hikes in American history. We didn't clarify that when we wrote 'state exchanges' 18 times we really meant 'federal exchanges set up in the states'.
Let's just ignore the very simple method of fixing it by using the technical corrections bill and making the state exchange language less ambiguous. Heckfire! Let's just roll the dice and see what the Roberts Supreme Court says about it 5 years from now. He was a George W. Bush 43 appointee to you....I am sure he will see it our way!'
Which he surprisingly did. Twice now.

If this was just a case of 'inartful' legislative drafting as indicated in the Roberts' decision, then the ACA may take its rightful place in the annals of legal history as being one of the most confusing and 'inartful' pieces of legislation to ever have been passed by the US Congress.

To date, there have been at least 51 changes to the ACA either by executive order (in the form of delays mostly, so as to put off the full brunt of the cost of ACA to employers and individuals covered by the mandate until after the 2014 elections first and now the 2016 Presidential Election); legislative changes or judicial review.

This could have been all cleaned up by the Democrat-controlled 111th Congress through a tidy, carefully written and crafted technical corrections bill between March 30, 2010 and the end of the year 9 months later before the Democrats lost control of both the House and the Senate.

But it wasn't fixed. Why not? Could it possibly be that the 'legislative intent' all along by the Democrat Congress was to force states to comply with the new ACA rules in full and expose those states unwilling to set up state exchanges as being cold-hearted and insensitive to the issue of the uninsured who lacked health insurance in their state? The resulting political pressure would have been enormous on anyone in that state's legislature under those terms, don't you think?

Now the Chief Justice of the Supreme Court of the United States of America along with 5 other colleagues have somehow managed to go back in time and 'divined' the legislative intent of our duly-elected Congress of 2010. In effect, for the second time now, (changing the 'penalty' to a 'tax' in the last big ACA decision being the first), Chief Justice Roberts has helped rewrite legislative language on a major bill which is a duty normally reserved for our elective Representatives and Senators.

The Democrat Congress and US Senate and President had 9 whole months to correct this ambiguous language in 2010 and make it explicit that they meant 'federal exchanges set up in the states' through the very simple, basic and elementary technical corrections legislative process.

Chancellor von Bismarck's adage should be set on its ear and amended thusly:

''If you like judicial review at the Supreme Court making law and sausages, you should never watch either one being made”

* Last paragraph of Judge Scalia's scathing dissent:

'Having transformed two 
major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act
or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through
the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid]
payments to the State” means only incremental Medicaid payments to the State, “established by the State”
means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.
And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some
laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

 I dissent'.


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