Tuesday, March 16, 2010
I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.
So, I, for one, am concerned about the parliamentary process being considered by the Congress, the so-called “deem and pass” method, where a vote on a concrete text may be bypassed in favor of a parliamentary fiction that could nevertheless result in the passage of a law whose content is unknown at the time the legislators are committed to “passage”. Speaker of the House Nancy Pelosi recently was quoted as saying, “But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” [news clip Download Breitbart.tv » Nancy Pelosi We Need to Pass Health Care Bill to Find Out What’s In It] I may be in a minority, but I think it important to know what is in the bill prior to its passage rather than after its “adoption”. In my estimation, the Speaker’s approach intensifies rather than eliminates controversy and its fog.
Words in bills mean something; words in laws mean something. They are not fluff; they are substance with serious legal implications for the future.
As I understand the procedural matter, the House is gearing up for passage of a Senate “bill” which has not been finalized. I am putting aside Constitutional concerns of Article I for the time being and focusing on a parliamentary maneuver to adopt a future text that does not yet exist but whose “adoption” has sweeping and irreversible implications on the fact that Members of the House and citizens may be committed to a bill (and, therefore a law) whose language does not exist at the time of passage. [See March 16, 2010 Associated Press report here, which further states, “House Speaker Nancy Pelosi wants to shield lawmakers from having to vote directly on the Senate-passed health care bill because it’s unpopular with House Democrats. ‘Nobody wanted to vote for the Senate bill,’ Pelosi, D-Calif., explained...” I find this a poor excuse for passing a “bill” which may be unpopular, especially when its language is unknown because it does not yet exist.]
A further concern I have is that some elements of existing legislative proposals may well find their way into any future law regarding health care that the Congress may soon pass. I am sure we are all grateful to Michael Perry for his bringing to our attention the analysis of Professor Timothy Jost of the Washington and Lee School of Law countering the position of the United States Conference of Catholic Bishops. In his memo Professor Jost makes the claim that, “The Senate bill (1303(b)(1)(A)(i)), like the House bill (222(e)), provides that qualified health plans may not be required to provide abortion as an essential benefit.” But I find Professor Jost’s argument unpersuasive and discomforting.
True, the final language that may eventually be adopted may not “require” something, but that does not mean that it will not be “permitted.” Why do I suggest this? Again, my teaching legislation courses for almost a quarter of a century reminds me of what happened to Section 703(j) of Title VII of the 1964 Civil Rights Act that was at the heart of the legal controversy in Weber v. United Steelworkers (1979). The applicable legislative text (known by or at least available to the Congress at the time of the passage of this important legislation) stated that nothing contained in Title VII “shall be interpreted to require any employer...to grant preferential treatment...to any group because of the race...of such...group on account of” a de facto racial imbalance in the employer’s workforce. In writing for the majority, Justice Brennan went on to conclude that had Congress mean to prohibit all race-conscious affirmative action, it could have provided that Title VII would neither “require” nor “permit” racially preferential integration efforts. And so, I look at what Professor Jost has said and conclude: Congress may not be requiring “abortion as an essential benefit,” but, following Weber, it may very well permit “abortion as an essential benefit.”
Surely the matter of health-care legislation of the magnitude that Congress is considering demands a clear text known in advance of its deliberation and voting. If the Congress does not desire this, indisputably the American people deserve to know in advance how their elected legislators are making extraordinary laws without knowing what is in them. Perhaps some members of Congress see no need in putting the American people on notice of what may be expected and required of them, but I think the American people deserve to know this before it is too late.