“Due Process of Lawmaking and the Obamacare Repeal”

Abbe Gluck:

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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