The Affordable Care Act
Ruling by courts on the Affordable Care Act’s Constitutionality centered on the individual mandate and states’ rights but many other issues in the bill run contrary to our understanding of the Constitution. Consider this: Can a bill of 2700 pages, contradictory commands, vague directions and an unheard of number of to-be-determined-in-the-future items be considered valid legislation? Is this what our founders intended when they created a Congress to write our laws and represent us?
I asked Judge Jim Gray, the highly regarded Superior Court judge who recently retired after 25 years on the bench, how a law should be written. Judge Gray says laws should be concise, predictable and enforceable. The Affordable Care Act (ACA) fails the test on all counts.
The first requirement is to be concise. This was on my mind when I took part in a Constitutional Convention last month at Freedom Fest, an annual non-partisan “gathering of free minds.” Our task was to determine what, if any, changes should be made to our Constitution. My offering received the loudest accolades. It was an amendment stating: All proposed legislation will be no more than 30 8×10″ pages long, double spaced, Arial, 12 pt. In addition, legislators can not vote on said legislation unless it can be proved they have read it. But, we shouldn’t need an amendment guaranteeing that our chosen representatives read the laws they’re making for us…. that’s a given if they’re truly representing us. Now we’re confronted with the ACA, a law so long and complicated that our highest Supreme Court justices have admitted they couldn’t review it in its entirety. So no, this 2700 page law, the longest ever written, weighing 19 pounds and a word total longer than Tolstoy’s War and Peace, doesn’t come close to being concise.
Now for Judge Gray’s 2nd requirement: predictability. To begin with, the non-partisan Congressional Research Service, recently reported that the number of agencies, boards and commissions created under the ACA is literally unknowable. By their account, it is impossible to predict what they are, how much influence they will have, when and how they will come into being and who will pay for them.
Another aspect of the law that makes it unpredictable is its complexity. Staff members of the Congressional Joint Economic Committee spent 4 months cataloging the known agencies and their interactions. The result, is a bewildering schematic maze of government entities. Incredibly, the chart represents only a third of the law’s components. An additional 151 entities are represented as underlying larger components. How can anyone predict the outcome of such a complicated, convoluted bureaucracy?
The many conflicting, contradictory provisions in the bill add still more unpredictability. One example, Section 6301 of the health care reform legislation, is a mass of contradictory obfuscation. In one sub-section it states, unequivocally, there will be no rationing of health care and then, in another, calls for measures that will result in …. rationing. Did our lawmakers pass a bill calling for health care rationing… or not?
Judge Gray’s last requirement for a law is that it be enforceable. Even before the bill became law, non-partisan scorekeepers of both Congress and the Executive Branch warned lawmakers that provisions of the ACA were, in fact, unenforceable. In one instance the Congressional Budget Office said policies in the bill calling for drastic reductions in payments to health care providers would be difficult to enforce. Similarly, Richard Foster, respected actuary for both Medicare and Medicaid, stated that the cutbacks in future Medicare budgets called for in the bill would negatively impact senior care. These reductions could not be enforced without seriously impacting senior care, something the public wouldn’t tolerate.
But the most significant statement about the enforceability of the law was made by the Supreme Court. The Court ruled that provisions in the bill requiring states to submit to new Medicaid standards or face sever penalties are unconstitutional, invalidating that very significant part of the health care reform bill.
The Affordable Care Act is a prime example of bad law: imprecise, unpredictable and unenforceable. The Constitution vested Congress with the duty to make laws…. not to force us to follow unreadable, contradictory and vague suggestions.