Seeking policy resolution from the courts, when you have the votes to do it yourself, is the height of legislative folly.
The hubbub over the ACA is getting weirder and weirder. Amidst other revelations, there appears to be an extensive but as-yet undisclosed legislative history bearing on the pending Supreme Court litigation in King v. Burwell. One surprise at a time, though:
Professor Jonathan Gruber has by now well earned the George Washington Cherry Tree Award. Congenitally incapable of telling a lie, he blurts out an inconvenient truth about the act every time he opens his mouth. In today’s Wall Street Journal, Tevi Troy unveils “Another ObamaCare Deception” cheerfully revealed by Professor Gruber, this one having to do with an artfully disguised tax on “Cadillac” health plans that will eventually encompass Chevys.
What of it, though? Contrary to earlier official representations, Professor Gruber neither designed nor carved the ACA’s “three-legged stool” (the professor’s coinage, which has disappeared from the administration’s parlance ). According to President Obama, the guy is “some adviser who never worked on our staff.” (All presidential quotes below at this link.) True: on staff, the good professor wouldn’t have earned the $400,000 the administration paid him for his work. Ex-Speaker Nancy Pelosi, meanwhile, has never met the man. Ok, maybe not never. But not really.
Also, the President “completely disagree[s]” with the adviser’s position “in terms of the voters.” Mr. Obama’s artful phrasing leaves room for the possibility that the voters are in fact stupid (witness the recent election returns); it’s just that contrary to Professor Gruber’s averments, the ACA’s enactment did not exploit that debility. “It’s fair to say,” the President opined in gorgeous Brisbane, “there is not a provision in the health care law that was not extensively debated and was not fully transparent.”
This startling piece of news well-nigh compels urgent legal action in King: a joint motion by plaintiffs and defendants (the government) to DIG (dismiss as improvidently granted) the entire case and to remand it to the district court, with instructions to compel discovery from whosoever has access to this “extensive debate.” The parties agree that the ACA provisions at issue—sections 1311 and 1321—are crucial to the entire ObamaCare architecture. They also agree that apart from a few snippets and circumstantial evidence, there is no legislative history. The government doesn’t have any. It simply insists that the plaintiffs don’t have any, either, and so there—as if there were some legal canon to require history in support of plain language (there isn’t).
The likely truth is that there was no history on this or countless other ACA provisions because (as Tyler Cowen and others have cogently explained) there was no intent except to get the statute passed and then find out what’s in it. The ACA’s masterminds didn’t just bet on the stupidity of American voters; they also bet on the stupidity of Democratic legislators, many of whom have long since joined Professor Gruber in exile because Nancy and Harry sent them there. That said, the existence and sudden appearance of a heretofore undisclosed “extensive debate” on Sections 1311 and 1321 would hardly be the first strange twist in this saga. In fact, it would be wholly consistent with the way in which the statute was passed.
We should find out, for reasons of political hygiene. DIG, remand, and send the subpoenas.
On second thought, never mind.