D.J. Tice wrote in his "Two key cases" column about the challenge to the ACA (Obamacare) currently before the Supreme Court. The case concerns suits alleging that the administration is not following the law as it was written. The Constitution of the United States, in describing the duties of the president, states: "he shall take Care that the laws be faithfully executed ..." It doesn't say the president shall execute the laws as he interprets them.
Tice correctly noted in his column that the plain language of the law only authorizes subsidies in connection with exchanges "established by the state." State, as it was written, meant one of the 50 states of the U.S.
According to Tice, the language authorizing subsidies was "pretty clearly" a mistake, and the Obama administration's fixing of that flaw by widening access to the subsidies beyond the literal language seems a more reasonable effort to give effect to what was meant to be enacted. But what was meant to be enacted?
The language of the law, as written, was not a mistake. The drafters meant what they said. They meant to coerce states to get on board with the law and set up their own exchanges. How do we know that? From the testimony of drafters of the law and interviews with key players, we have learned that they intended to offer the states a carrot — subsidies if they set up a state exchange — or a stick: disallow subsidies if they failed to set up a state exchange. Contrary to their plans, however, the majority of states opted not to set up exchanges.
Now, according to Tice, if the court decides in favor of the plaintiffs the court is sweeping aside the democratic process.
Putting aside the intent of the drafters, what democratic process was followed in the writing and passing of the ACA? Was a bipartisan commission set-up to draft the bill? No! Was any input sought from anyone other than the people who were secretly drafting the bill? No! Was debate allowed on the floor of the Senate or House? No! Did any member of Congress get to offer an amendment to the bill? No! Did any member of Congress have the opportunity to find out what was in the bill prior to voting for it? No!
In fact, the ACA was rammed through Congress without anyone knowing what was in it, and the vote was on strict party lines. We can still recall Nancy Pelosi telling members of the House that they had to pass the bill in order to find out what was in it.
The court needs to rule in favor of the plaintiff. The ACA needs to either go back to Congress for a rewrite or be thrown on the scrap heap of bad law. Liberals and progressives need to rise above their partisan views and support the plaintiffs' position. If we are to live with such historic change to our health care system, the change needs to go through bipartisan vetting and regular process in the houses of government. Rather than sweeping aside democratic process, the court could restore democratic process by sending the law back to Congress.
Ronald B. Stolpman lives in Lakeville.