No phrase in American political history has been as fertile a ground for proof of the incompetence of Government as then-House Speaker Nancy Pelosi’s famous comment about the Affordable Care Act: “We have to pass the bill to find out what’s in it.” Here we are six years along from that #facepalm moment, and we continue to find out “what was in it” includes some things that the people who claim to have written the bill didn’t know were in there.
The latest challenge to the ACA’s constitutionality centers on the subsidies provided to health insurance enrollees who purchase their policies through the Federal exchanges in states that didn’t set up their own (including Wisconsin). It seems that the law approved by Congress and signed by President Obama includes the phrase that says the Federal government will provide those subsidies only to those who use exchanges “established by the state”–meaning you could draw a reasonable legal inference that the subsidies could not be provided to those in the Federal exchanges.
Some of those who claim to have “written” the ACA bill claim that phrase wasn’t meant to be in there. Others say it was supposed to be in there–but they never thought that states wouldn’t want to take on the expense of setting up and running their own exchanges. Now we have 36-states without their own exchanges (including some that started out with their own–but then realized that was a losing proposition)–meaning about three-quarters of those getting the subsidies would be out of luck if the Supreme Court rules in favor of the plaintiffs.
To be fair, the original Affordable Care Act bill was more than 900-pages in length. It would have been almost impossible for all of the Democrats that voted in favor of it to read through the measure–given all of the campaign fundraising that needs to be done and the last minute shopping they had to get done before the midnight Christmas Eve vote on the bill. And then most of them were voted out of office–leaving them even less time to read the bill and the subsequent millions of words of regulations added on to the law since then. Although, I do recall then-Senator Russ Feingold telling me directly here on WOSH that he had read every page of the ACA before he voted on it–so I have to wonder how the “Smartest Man in Congress” missed that?
Now the Supreme Court could always bail out the ignoramuses that approved the ACA again. Remember, it was Chief Justice John Roberts that saved the measure in its first challenge by finding that the Individual Mandate clause was constitutional when considered to be a Federal “tax”, even though the Obama Administration attorneys handling the case never actually made that argument!! This time around, he might decide that “established by the state” could also include the Federal Government as well–even though the Constitution itself always delineates between “Congress” and “the states”. It’s ironic in a way that those who didn’t read the bill need to rely on a few people reading things in it that aren’t actually there.
