Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
1976, former Oregon Supreme Court Justice Hans Linde published a provocative
article--Due Process of Lawmaking--which
suggested, among other things, that legislation that was the product of lack of
deliberation or process could be constitutionally invalid. Today, the U.S.
Senate is moving to a vote on a mystery Obamacare repeal the contents of which no
one-- not even the Senators being asked to vote--knows.
Republicans excoriated the Democrats in 2010 for passing the ACA without
deliberation and using an unorthodox legislative process. They were only
partially right. The ACA was passed after two
years of extensive hearings and research by a combined five congressional
committees.The deliberative aspect of
the statute was possibly unprecedented.By contrast, the current Senate has not held a single hearing on health reform.
It has now received two sets of budget scores that show their proposals will
have devastating effects for more than 22 million Americans who will be forced
to go without medical care, and they cannot agree on a replacement.
will they do instead? Instead of having the hard debate about what a health care system really is supposed to do for its citizens (this is the debate about the tension between solidarity and "every man for himself" that we have seen underlying some of the principled Republican resistance to earlier versions of the repealer), the Republicans are going to pass a bill whose content they don’t
know and, if they cannot agree on such a bill, they are going to simply repeal
the core components of the ACA without a replacement, throwing the insurance
markets that they claim they are working to save from the “Obamacare disaster” into even greater disarray. (For my previous documentation
of how it was largely the Republican sabotage of the law, not the ACA itself,
that caused the instability, please see here.) As for
the unorthodox process, it is true, as I write with Anne O’Connell, that “unorthodox
lawmaking” is on the rise. The ACA was not the first bill to be passed using “reconciliation”--a
fast-track procedure devised for the budget process that avoids a filibuster--and
any potential ACA repealer won’t be the last.
be clear: Only a very small part of the ACA was actually passed by reconciliation.
All of the major components--including the insurance exchanges and subsidies
and the Medicaid expansion-- were passed by good old fashioned school-house rock
voting, filibuster and all.By contrast, the Republicans,
who do not have the votes to avoid a filibuster are going to use the very same
unorthodox procedure they pilloried to pull the whole statute down.
repeal for repeal’s sake.It’s not about
policy. It’s all about politics. And of course, it’s also about human lives. What would Hans Linde say?
Our Supreme Court has never been willing to strike down a federal statute for lack of deliberation. Instead it has acted more indirectly, devising deliberation-forcing canons of interpretation that require Congress to speak clearly before a statute would be read to trample on certain values. We have canons that protect federalism, arbitration, bankruptcy, jurisdiction, and countless other subjects, some embracing constitutional values, others simply embracing policy values. But we do not yet have a canon that protects the basic legislative value of deliberation. Today's events in the Senate raise the question whether we should.