Who needs Congress when the Obama administration is ready to legislate?
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In this case the enactment process militates against a judicial rewrite. After the election of Scott Brown in January 2010, the Democrats lost their filibuster-proof majority in the Senate. That required the Democrats to accept an unfinished product as the final version, subject only to the modest changes available through the reconciliation process (which requires a simple Senate majority). Adler and Cannon point out: “Given the choice between a Senate bill with many provisions they did not like, or no bill at all, they opted to accept the former.” And in using the reconciliation process Congress did not add benefits for federally created exchanges.
Anyway, leaving out tax credits and subsidies for federal exchanges was not just a “drafting error.” Even Jost admits, “It is clear that the federal government favored state exchanges.” The mere fact that tax credits and subsidies for federally run exchanges would be consistent with the legislation does not mean they were intended to be part of the legislation. Jost assumes rather than proves that Congress intended other than it legislated. Jost, like the administration, wants the IRS to amend the law to read as he wishes, not as Congress intended.
Indeed, Adler and Cannon make a strong case that legislators knew what they were doing, that “this feature of the law was intentional and purposeful, and that the IRS’s rule has no basis in law.”
First, the legislation is clear. The text of the bill as passed is unambiguous. The relevant section only applies to state-run exchanges. Antecedent legislation that was subsumed by PPACA also failed to provide tax credits and subsidies for federal exchanges. Moreover, argue Adler and Cannon, “Neither the structure, history, nor other indicia of congressional intent support the IRS position.”
Backers of PPACA decided to rely on state-created exchanges. Obviously, Congress could have taken a different approach. In fact, Senate Finance Committee Chairman Max Baucus, who wrote much of the law, initially favored a federally established exchange. But his first “chairman’s mark” went with a state-based system, with federal exchanges as back-up.
Since the Constitution barred Uncle Sam from formally mandating state action, legislators provided financial incentives to win over recalcitrant states. Note Adler and Cannon, offering benefits only for state-established exchanges “is consistent with the PPACA’s modus operandi of using financial incentives to elicit a desired behavior.” There are penalties for individuals, employers, and states. (Indeed, the Supreme Court ruled that the cost to states that did not expand Medicaid was so onerous as to be unconstitutional.) Obamacare’s supporters appeared convinced that they would get their way.
For instance, the president declared that “by 2014, each state will set up what we’re calling a health insurance exchange.” Secretary Sebelius insisted that states were “very eager” to establish exchanges. President Obama and the congressional authors of PPACA probably did not expect to encounter widespread resistance. After all, the alternative to state action was a federal takeover without politically attractive benefits. The law’s supporters may have been foolish, but it is not up to the IRS to remake the law in response.
To override the obvious would require substantial evidence of contrary intent, but none exists. In fact, Senator Baucus stated that benefits were provided only to state-run exchanges. And that comment, observe Adler and Cannon, “is the only instance we found of a member of Congress discussing whether tax credits would be available in federal exchanges, and it flatly and authoritatively contradicts the IRS position.”
Backers of an administrative rewrite contend that the results of the law, as passed, are, well, absurd — that, in the words of a prior Supreme Court decision, “will produce a result demonstrably at odds with the intentions of its drafters.” However, many laws passed by Congress have absurd results.
PPACA is no different. Adler and Cannon point out that “In at least two other instances, Congress displayed an even higher tolerance for iatrogenic instability.” Legislators imposed community-rating on health insurance for children with no additional requirements, destroying the market for such policies in many states. And the administration gave up on the Community Living Assistance Services and Support Act, designed to cover long-term care, because the law as written was unsustainable.
Anyway, the alleged absurdity results not from how Obamacare was written, but from Congress’s erroneous assumption that states would rush to establish exchanges. The judiciary is not empowered to correct legislators’ judgment errors.
In fact, the administration appears to be suffering from a case of buyer’s remorse. States were supposed to establish exchanges. But they haven’t. Congress did not provide for that possibility by backing federally created exchanges in the same way. So the administration wants to insert the provision via administrative fiat.
PPACA backers also claim general administrative authority to interpret and implement statutes, but agencies can only operate based on legislative authority. If the executive can issue any rule “consistent” with rather than authorized by a law, there are few things that it cannot do — which truly would be an absurd result. Obamacare is massively complex; a wide variety of provisions could conceivably be consistent with the law’s professed objectives. But turning them into law is a job for legislators, not bureaucrats.
Obamacare does many things, most bad. However, it only authorizes tax credits and subsidies for “a governmental agency or nonprofit entity that is established by a State.” That does not include the federal government. The evidence suggests this is what Congress intended.
Maybe legislators were overly confident that their incentives would be sufficient to goad states to act. However, that mistake would not justify an IRS rewrite of the law. Only Congress can authorize tax credits and subsidies. Agencies have substantial discretion but, conclude Adler and Cannon, “they cannot write their own laws, impose taxes, issue tax credits, spend federal revenue, incur new federal debt, or create new legal entitlements without congressional authorization.”
Apparently the Obama administration does not understand this basic constitutional fact. But then, respecting the Constitution is obviously not a priority for the president who once taught constitutional law. It is now up to the courts to protect the rule of law.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online