The
challengers in this case submit that the legislation (the ACA) was written in a
fashion that plainly prohibits government subsidies for Obamacare policies in
states (numbering 37, I believe) that have failed to set up insurance exchanges. The government, through the IRS, contends
that it is clear from reading the entire
ACA legislative product (a novel thought
that might have been pursued prior to
passage) that regardless of a few words here or there, the clear
intent of the bill was to provide subsidies to all states, regardless of their exchange
status. In other words, the government
seems to acknowledge that the bill is imperfect in its construction; that it is
not entirely consistent with the manner in which it is being administrated. But they contend that the very administration
of the product (the need for the product) was the primary function of the
bill and that any deviation from the legislative process of that administration
should be a discretionary issue for
the Executive; in other words, the ends justify the means.
The
government’s position in this case strikes me as the Executive (Democratic administration of Obama)
demanding a mulligan for the Legislative (pure
partisan/not a single Republican vote) branch in its faulty construction of
the bill. It is inconceivable to me as
a citizen that an agency (IRS) of the
Executive would be empowered to remedy a perceived error in the construction of
a Legislative product. Quite simply, my
understanding of the balance of power principle requires that the Legislative creates law and the Executive administers law. The government position in this case, to me,
is a clear attempt by the Executive to both
administer the ACA through the IRS and create the law through its own interpretation
of a flawed legislative product; one can effectively argue it is a flawed legislative product. Under any reasonable understanding of this
arrangement, the balance of power principle is being violated. If the Legislative product is flawed, be it
purposeful or unintentional, the remedy for correcting that flaw lies with
the Legislative; not the Executive. To
me, it is abundantly clear that the origin of the flaw goes back to the
extraordinary method of the ACA's legislative creation. Many Democrats in Congress and the
Administration knew of the flaw at the time of passage and did not address it
because it was legislatively impossible; they did not have the votes in
Congress to reopen the bill on the floors of Congress. And now that those chickens have come home to
roost, the Administration proposes that regardless of the legislative flaw, it
was the clear intent of the Democrats
in Congress to sow the subsidies nationwide.
It might very well have been their intent to do so, but they knew at the
time of passage that the bill did not
read in that fashion and they could not take the chance to correct it in a
fashion that would read that way.
Layman
that I am, I am dismayed by the politicization of all things government. This is not a Democrat thing or a Republican thing; it is a Democrat and Republican thing. I am not wholly convinced that the original
SCOTUS ruling on the ACA, legitimizing its implementation and right of our government
to require a citizen purchase of a commercial product, was devoid of political
concerns. To me, the independence of the
Judiciary as the third branch in our balance of power arrangement is clearly
being put to the test. Regardless of the
administrative implications, this case simply asks whether or not one party’s
Administration has the power to legitimize that same party’s botched power-grab
in Congress. If SCOTUS finds in favor of
the government in this case, this citizen will view it as a dark day indeed for
the balance of power principle in this government.
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