The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Now that Chief Justice John Roberts has decided that the overall structure, intent, and viability of the Affordable Care Act is more legally salient than its actual language, it's worth pausing a moment to remember how the law was passed, and why various inconsistencies, ambiguities, internal contradictions, and other problems were not just predictable but inevitable. As I explain in my forthcoming book, "Lawless":
The Democratic leadership, fearful that momentum for Obamacare was fading as it continued to poll poorly, decided to rush a bill through the Senate before Christmas 2009. On November 18, Majority Leader Harry Reid merged two separate pending bills into a bill to be voted on by the Senate…. To meet the self-imposed Christmas deadline, Reid provided only six days for debate [on the final version of the bill]. The Senate bill passed on a strict party line vote, 60-39.
Few people, including Senators and their staffs, had time to read the whole 2,700 page bill, much less note any possible weaknesses, flaws, or ambiguities. Reid and other Senate Democrats weren't terribly worried about this. The bill was set to go to the House, then back to the Senate, then to "reconciliation" between the House and the Senate versions, and then to the president for his signature. Everyone thought there would be plenty of opportunities to make changes.
But a major impediment arose soon after the Senate bill passed. Democratic Senator Ted Kennedy had died that past summer, and the January special election to replace him was won by Republican Scott Brown, who ran as a strong opponent of Obamacare. This deprived the Democrats of their filibuster-proof majority in the Senate, and meant that the Senate would not be able to pass a revised bill. The only way to pass Obamacare at this point was to have the House vote on identical legislation to the Senate bill, while engaging in legally dubious procedural maneuvering. And that's what the Democrats did.
The House passed the Senate bill as is, and then also passed a separate reconciliation bill with minor changes, eliminating some of the law's most egregious flaws but leaving the rest intact….
Congress ultimately passed a Senate bill that nobody wanted, and, indeed, that likely no one had read in its entirety when the Senate passed it, and that certainly no one fully understood. Senator Max Baucus, one of Obamacare's chief architects, not only acknowledged not reading the bill, but opined that it would have been a "waste of time" to do so, because only experts could understand it….
Obama and the Democrats, however, believed that two things would happen that would justify their actions. First, Obamacare would become increasingly popular, and, second, that the Democrats would continue to control both houses of Congress. Obama and Congressional Democrats therefore assumed that any snafus that arose because Obamacare consisted of a hastily-drafted Senate bill never meant to become law could be easily fixed by Congress.
Of course, it didn't work out that way. The ACA has never polled well, and the Republicans took over the House and then the Senate, in part due to dissatisfaction with Obamacare. Since the Republicans have no stake in fixing a law they unanimously opposed, and the Obama Administration has no intention of reopening the legislation to major changes, the Administration has been left with using and abusing executive discretion to delay, ignore, and modify statutory provisions to get the law to work, or just to avoid the negative political consequences of it working as planned.
King v. Burwell represented the best hope that the Supreme Court would take the appropriate posture on all this, which is that those who rush through a law they haven't even read or understood and with no political support from the other side have to live with the consequences when inevitable mistakes arise. Instead, the majority took the position that its job is to help out the other branches when it turns out that such a law is unworkable as written. Too bad.