How We Legislate Now

Top Stories of the Year: #5

This is the time when I traditionally count down the top stories of the year, as covered in The Tracinski Letter. I'll also be sending out a few short articles covering some breaking news events (for example, Wednesday's news about Cuba and North Korea) and one or two larger pieces that I'd like to finish before the end of the year.

We start this year's countdown with story #5, which is partly about the president's attempt to detach the authority of the executive from the annoying impediment of the legislative branch of government, and partly about the approach to legislative power that lets him think he can get away with it.

The top story last year was the implosion of ObamaCare upon its actual, full implementation, when practically every warning issued by its critics turning out to be true, most particularly our warning that if you liked your plan, you wouldn't be able to keep it.

The story this year has been the way in which President Obama is trying to save ObamaCare by reinterpreting it ad hoc to do whatever it needs to do to avoid implosion—regardless of the original wording of the Patient Protection and Affordable Care Act passed by Congress.

A set of lawsuits, Halbig v. Burwell and King v. Burwell, challenge one of the biggest rewrites of ObamaCare. The Halbig case led me to ask:

Do we pass laws any more?

I ask because of the reaction to the federal appeals court decision in Halbig v. Burwell, in which the court enforced what the Affordable Care Act actually says—namely, that federal subsidies for health insurance are available only through state-run exchanges and not through exchanges set up by the federal government.

This is important because the majority of states declined to set up those exchanges—deciding to reject a system and a set of obligations foisted on them by Washington. And ObamaCare is just a big, complicated mechanism for delivering subsidies. Without that, all it does is cancel everyone's insurance policies and force them into more expensive plans they didn't want.

The central figure who emerged from this controversy is one of the architects of the law, Jonathan Gruber.

So [the law's defenders] screamed that the court's decision was totally ridiculous and implausible—and then up pops a two-year-old video from one of the Affordable Care Act's architects, Jonathan Gruber, in which he clearly explains that this is exactly what the law says—that denying subsidies on the federal exchanges was a way of pressuring the states to get on board. More recently, Gruber has been telling everyone that this provision was just a typo and was never intended at all. He even claims his 2012 statement was also a mistake, a "speak-o." Except that he said the same thing on at least one other occasion. So that gives you a good idea of the honesty of ObamaCare's supporters.

Actually, it could be argued that Gruber has been bracingly honest—about his dishonesty. An intrepid blogger has been digging up a series of publicly available videos and transcripts in which Gruber boasts about how the law was passed by deliberately dishonest means—"lack of transparency is a huge political advantage"—intended to take advantage of "the stupidity of the American voter."

Gruber's admissions strike to the substance of the law, but they also indicate the overbearing paternalism behind it. As I observed earlier in the year, "Usually, this sort of thing is supposed to happen only years after the law takes effect, but that might be 'never,' given the administration's habit of deferring the law's key provisions year after year. So the insiders' books are going to come out first, and they're going to start saying some unexpectedly honest things about the law's purpose."

That was in reference to another ObamaCare architect, Ezekiel Emanuel, who had written articles telling us that "Insurance Companies as We Know Them Are About to Die," and "Choice Is Overrated."

Even more revealing is his manifesto on "Why I Hope to Die at 75." As I argued:

The first person pronoun is not justified. None of the considerations he talks about--for example, the possibility of being slowed down and disabled in old age--are in any way specific to his own situation. He is not projecting the state of his own mind and body 18 years in the future, because he has no idea what that will be. He's talking about the human condition in general, and his observations apply to everyone. So he's really saying that he hopes you die at 75. Which is a little disconcerting when you realize this is the man who just redesigned our health care system.

The deeper premise behind this is even more ominous.

[L]urking behind Emanuel's article is the...premise...that the individual is only valuable so long as he serves society. The entirety of his article is focused on how productive individual are with age, how much they "contribute" to society, and "whether our consumption is worth our contribution." Since such "contributions" decline with age, at some point the individual reaches a cutoff at which his life no longer has utility for the human hive and is not worth the effort of prolonging.

As disturbing as these revelations are, this only counts as the fifth biggest story of the year, because its real impact will come next year when the Supreme Court decides King v. Burwell—and Gruber has inadvertently provided them with an excellent brief for striking down the federal subsidies. If the Court makes the law stand as written—I know, a radical concept—insurance rates will increase sharply and kick in the "death spiral" that drives healthy people out of the market, and the whole thing cracks apart. (Unless they come up with a new ad hoc reinterpretation in search of some other fix.)

But what makes this a big story for this year is the contempt for law that we can also see in this administration's approach to another big issue: immigration.

After the mid-term election, Obama has grown defiant of Congress and of the people who voted for it, and he has focused only on appealing to his far-left base. Hence his decision to seek normalization of relations and a lifting of the embargo on Cuba, a move only lauded by those who are so far to the left that they still sympathize with Communist dictatorships.

And why shouldn't he experience fellow-feeling with dictators? In declaring a de facto amnesty program for illegal immigrants on the sole authority of the president, Obama is pushing toward rule by decree. As I asked when the idea was first floated:

Does this guy even understand how representative government works?

Here's how it works: the representatives govern. In other words, Congress makes the laws. But Obama seems to think that when push comes to shove, the president is the only representative the people need. Thus, he declared that "America cannot wait" for Congress, as if he speaks for America, rather than the people actually elected by the people to represent them in something called—you guessed it—the House of Representatives.

You can see, though, how the precedent was set by the view of law that I described earlier with regard to ObamaCare:

They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.

This began with the antitrust laws, which banned "restraint of trade" without defining what that meant, leaving it to the courts to make the law as they went along—or, more often, leaving it to the arbitrary prosecutorial discretion of the Department of Justice and the FTC.

We've seen it more recently with the Supreme Court's 2007 ruling allowing the EPA to control carbon dioxide emissions under the 1990 Clean Air Act, despite the fact that Congress had the opportunity to add such an authorization and declined to do so. The court's reasoning was that the Clean Air Act gives the EPA power over everything in the air, and how it uses that power is up to the agency, not Congress, to decide.

This is also why ObamaCare was filled with exemptions and waivers and created a vast bureaucracy whose jobs were to write thousands of more pages of rulings about what ObamaCare would do. And this is why we had to pass the law to find out what's in it.

This is only one big issue that reveals this administration's dim view of the American people and President Obama's reversion to his far-left roots, which is what we have been expecting and waiting for all along. I'll continue that story in the next installment, with #4 in our countdown of the top stories of the year.

One last note: Last year about this time, I sent out a list of book recommendations for young children. Those recommendations are up again this year, with a few very small corrections and additions, at The Federalist. But I'd also like to ask for some help from my readers. My oldest son is beginning to progress beyond these books, becoming a voracious and increasingly independent reader. So I'm looking for your recommendations for books aimed at 7-to-10-year-olds. I'll road test them with my son and let you know our results next year. In the meantime, take advantage of my existing set of recommendations if you need gifts for slightly younger audience.

Then there is that good old reliable gift idea for older readers: subscriptions to The Tracinski Letter. Please take advantage of our Holiday Sale.