Tuesday, July 25, 2017

Due Process of Lawmaking and the Obamacare Repeal

Abbe Gluck

                In 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.    

                The 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.
                So what 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.

                But let’s 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. 
                This is 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. 

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