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Policy: Law

If Democrats don't like what Obamacare says, they need to find the votes to change it

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Opinion,David Freddoso,Columnists,Obamacare,Democratic Party,Health Care,Law,Scott Brown

Last week, the Halbig v. Burwell decision by the U.S. Circuit Court of Appeals for the District of Columbia imperiled Obamacare's ability to operate as expected.

The ruling, which is still subject to appeal, stated that the Affordable Care Act provides employer penalties and consumer subsidies in states that created their own exchanges, but not in the majority of states that opted out.

The decision created a bit of a freak-out among the law's defenders. Surely, they argued, the Democrats who passed the Patient Protection and Affordable Care Act never intended a system in which any state could opt its employers and consumers out of penalties and subsidies.

I'm inclined to agree – and to point out that it doesn't matter, because Congress didn't get to do what it intended.

Greg Sargent, who operates the center-left Plum Line blog for the Washington Post, argues based on the bill's legislative history that drafters intended to produce something that applied equally to all states. The final bill, he notes, was created by merging two Senate committees' versions of the bill together. Someone involved in the process apparently made some bad decisions, resulting in a law with provisions that apply to section 1311 (i.e., exchanges created by states) but not to section 1321 (i.e., exchanges created by the federal government).

Sargent is probably right about what was intended. It also doesn't matter, political history, not legislators' intentions, created Obamacare as we know it. That's another way of saying that elections matter.

If we want to talk about this in terms of legislative intent, it is clear that Democratic leaders in Congress intended to pass a finely tuned, carefully edited measure based on a compromise between various versions of the bill that existed in late 2009. But it's even clearer that this never happened, because when the time came, they didn't have the votes to do it.

When different versions of Obamacare passed the House and Senate originally in 2009, Congressional Democrats intended to work out the details in a conference committee. They intended to create a final version that both houses could pass, and we'd all live happily (or unhappily) ever after.

But then a Republican, Scott Brown, unexpectedly won a January 2010 Senate special election. In doing so, he deprived Democrats of their Senate supermajority, and thus of the ability to pass any version of Obamacare except one – the imperfect version of Obamacare that had already passed the Senate. Unable to pass the “ideal” Obamacare they had intended and hoped for, they passed the imperfect version – and now we're stuck with it.

The version we got doesn't treat all exchanges equally, as the Halbig court noted. Certain rules apply specifically to exchanges that are referred to in the bill over and over and over again as having been “established by the State under [section] 1311.” Those rules are not applied to exchanges established by the federal government under the separate section 1321.

Sorry, the Halbig court said, but that's what your bill says. You can fix it with an act of Congress.

Politically impossible? Yes. Also, constitutionally required.

The most important question the court addressed in Halbig, near the end of the opinion, was not about Obamacare at all. It was about why we have courts.

Do courts exist to interpret the laws that are passed through the political process, no matter how ugly that process gets? Or are the courts there to bail out leaders in Congress who tried to go a bit too far, and ended up one vote short of getting the bill they wanted?

DAVID FREDDOSO, a Washington Examiner columnist, is the former Editorial Page Editor for the Examiner and the New York Times-bestselling author of "Spin Masters: How the Media Ignored the Real News and Helped Re-elect Barack Obama." He has also written two other books, "The Case Against Barack Obama" (2008) and "Gangster Government" (2011).
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