This week, NBC News and The Wall Street Journal released poll results that are disturbing but by no means surprising. The March 11th – 14th poll of 1000 American adults showed that only 17% of respondents approve of the job Congress is doing in Washington. And as bad as that number is, the reason why Congress’ approval rating is so low is even more disturbing: a full 76% of Americans simply do not trust the U.S. Congress. This was the lowest level of trust for any representative entity tested by NBC/WSJ.
It is no coincidence that these record low ratings come amid current debate over health care in Congress. Yesterday, former U.S. Attorneys General Edwin Meese III and William P. Barr released the following statement:
The convoluted and questionable method under discussion by both Houses of Congress for final passage of the long-debated health care legislation raises serious constitutional concerns, which, at best, will lead to protracted and wholly avoidable litigation and continued doubt about the bill’s validity. Members of Congress from both parties have criticized the use of such sleights of hand, and The Washington Post has rightly editorialized against such “unseemly” and “dodgy” maneuvers for the health care bill. Beyond the obvious practical concerns shared by all citizens, the use of such obscure “rules” for final passage is even harder to justify in light of the real constitutional doubt and the erosion of public confidence in government that it will cause.
Contrary to what President Obama and some congressional leaders have been repeating of late, the American people do care passionately that the process for consideration of health care reform be both constitutional and fair. At a bare minimum, article I, sec. 7, cl. 2 of the U.S. Constitution requires that before it becomes law “(1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President.” Clinton v. City of New York, 524 U.S. 417, 448 (1998).
The “deem and pass” and similar options under consideration in the House of Representatives plainly violate at least the spirit of the Constitution’s bicameralism and presentment requirements. Those constitutional requirements were intended to ensure democratic transparency with a straightforward up-or-down vote in each House on all bills that become law. More importantly, these requirements were designed to ensure that the new national government actually followed “the consent of the governed,” which the Declaration of Independence had declared to the world was the only basis of legitimate government.
The “deem and pass” options under consideration in the House and the subsequent use of a “reconciliation” process that is reserved for budget issues in acts already signed into law further erode confidence in the rule of law. Some past uses of the “deem and pass” or “self-executing” rules raise similar concerns, but none was as convoluted as the proposed use, and significantly, there may have been no one with legal standing to challenge prior uses in court. Many individuals will have standing to challenge any health reform legislation that restructures one-sixth of the American economy, and the contemplated use of the “deem and pass” maneuver in this instance may be combined with questionable procedural steps in the Senate that render it much more subject to challenge.
There is no need to engage in such procedural machinations, and no asserted reason for doing so exists other than to avoid the traditional legislative safeguards in the Senate and to obscure the appearance that Members of the House actually voted for the Senate bill, which is a prerequisite for genuine reconciliation. The constitutional requirement of bicameralism should not be jettisoned under any circumstances—and certainly not for such trivial and partisan reasons.
Members of Congress take an oath to uphold the Constitution. Members should violate neither the letter nor spirit of the Constitution, especially when there is so much at stake, not only as a policy matter, but when the very legitimacy of the legislative process is in question. Given that many parts of the underlying legislation itself raise substantial constitutional concerns, these “unseemly” and “dodgy” procedures underscore the justified concern the American people have that their elected representatives are blatantly disregarding the Constitution, and as a result, undermining the rule of law.
Quick Hits:
- Bowing to public and private complaints from lawmakers, President Barack Obama delayed his trip to Indonesia and Australia to lobby for his health care bill.
- According to Gallup, pluralities of the American people believe Obamacare will make things worse for middle-income families, hospitals, doctors and “you and your family.”
- According to Fox News, 55% of Americans oppose the health care reforms being considered in Congress.
- A new analysis by the Joint Economic Committee and the House Ways & Means Committee minority staff estimates up to 16,500 new IRS personnel will be needed to collect, examine and audit the new tax information Obamacare requires families and small businesses to provide.
- Sen. Tom Coburn (R-OK) promised to block any nominations of House Democrats who vote for Obamacare to any Senate-approved federal position.
A recent study by the Urban Institute, a prominent liberal think tank, lists “the biggest losers” should congressional health care legislation fail to become law. Interestingly enough, this is oddly similar to an earlier Heritage Foundation assessment of the “biggest losers”—if the liberal bills do become law. Here, we outline how Urban’s biggest losers would actually be worse off under Obamacare than under the current system:
Self-employed people – Because the self-employed are at a significant disadvantage due to current regulations preventing them from buying group health insurance, one might think the ability to buy at controlled prices through the “exchanges” set up under the Senate bill would be of great benefit. However, the self-employed would lose many options currently available, such as low-priced catastrophic insurance, and health savings accounts paired with high-deductible, low-premium insurance. Furthermore, moderate-income self-employed people who can’t afford the high-priced comprehensive health plans offered through the exchanges and aren’t eligible for subsidies would not only lose their insurance, but would pay a penalty for remaining uninsured.
Workers in small firms, including those offered employer-sponsored insurance (ESI) – Several million workers currently receiving insurance through an employer would lose their coverage under the Senate bill. Faced with increasing insurance premiums, plus the elimination of “no-frills” health plans as “acceptable coverage”, many employers will find it cheaper to pay the tax penalty than to provide insurance. This is especially so for those with less than 50 employees, who will be exempt from the penalty but not from the new regulations on insurance if they choose to provide it. The result will leave workers with the legal obligation to either buy the government mandated high-premium comprehensive insurance out of their own pockets using after-tax dollars, or pay the new penalty for remaining uninsured.
Non-elderly people working part-time and people working full-time but for only part of the year – Employers of people in these categories will be exempt from providing them insurance, but the people themselves will not be exempt from the requirement to obtain the government-specific comprehensive insurance on their own. Lower-premium catastrophic insurance will not satisfy the requirement. Persons in these categories will be required to either buy the government specified high-premium comprehensive insurance out of their own pockets using after-tax dollars, or pay the penalty for remaining uninsured.
People who have or had significant health problems - In order to raise revenue, the Senate health bill includes a tax on medical devices, prescription drugs, and high-cost insurance plans. Though these taxes are aimed at the companies that provide high-cost medical necessities, as economists know, these taxes would be passed along to the patients, increasing expenses for those with costly illness and the premiums of health plans that cover them. What is more, the Senate bill, as well as the President’s latest proposal, combines an individual mandate with a guaranteed issue requirement, meaning that companies cannot turn people away from enrollment. The powerful economic incentives that are hardwired into this flawed arrangement will encourage the young and healthy to avoid purchasing insurance until they “need” it, paying the “cheaper” mandate penalty instead. There would be even greater risk segmentation in the insurance markets than we have today, as the insurance pools would attract disproportionately larger numbers of older and sicker enrollees. This would further raise premiums for those who need insurance to pay for significant health problems.
Older working-age adults and early retirees – Heritage analysis shows that older working age adults and early retirees, specifically those aged 45-64, will be hit with new taxes despite President Obama’s promise not to raise taxes on households earning less than $250,000 per year. Households headed by individuals aged 45-64 who deduct medical expenses on their 1040 tax form, those who ought to be helped by a health care reform bill, would see a tax increase of about $200 on average. The higher the medical expenses faced by these families the higher the tax increase they would face. While some would face a very small increase, others would be hit with a heavy new penalty for having medical expenses.
People with low incomes - Low-income families are uniquely vulnerable under the Senate health bill. Heritage research shows that the Senate bill creates incentives for employers to avoid hiring members of low-income families. The employer mandate would require employers with 50 or more employees to offer insurance to all employees or pay a penalty of $750 per worker. However, if the employer does offer insurance, they would still pay a fine – but only if they hire workers from low-income families! If the employee’s portion of the cost exceeds 9.8 percent of the employee’s family income, and that employee is eligible to receive a premium subsidy (“affordability credit”), the employer would be slapped with a $3,000 penalty. This is based on family income, so employers would be better off hiring workers with few dependents or with other sources of income, rather than those with a single source of income and several dependents. In other words, employers would be punished for hiring the members of society who need jobs the most.
Kathryn Nix and Guinevere Nell contributed to this post.