Friday, May 29, 2015
A few days ago The New York Times published an article entitled “Four Words that Imperil Health Care Law Were All a Mistake, Writer Now Says.” [HERE] A major point presented by this article is that these four words in the Patient Protection and Affordable Care Act of 2010 are at the heart of the legal difficulties associated with this legislation. These words are: “established by the State”. I do not think that this is the only source of interpretative problems in the law, but I digress. This phrase appears over a dozen times in various contexts throughout the bill that was enacted into law. The Times article offers the opinions, of several well-placed individuals involved with the efforts to promulgate the bill, that these words are: “the most contentious” of the bill; “a product of shifting politics”; “inartful”; “a drafting error”; or, “inadvertent language”.
Back in March of 2010 prior to the enactment of this legislation, I offered some thoughts about it HERE at the Mirror of Justice. As I said at that time,
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.
I also noted in my March 2010 contribution that the meaning of words and their implications are important to legislators and citizens. They are clearly important to lawyers, administrators, and judges, too. I also argued in my earlier posting that there could well be issues raising the requirements of Article I of the Constitution. One of them is: did each house pass the bill in the same form? What was the “same form”, if it ever existed? One veteran legislator involved with the enactment has suggested that the four words “established by the State” “clearly contradicted the main purpose of the legislation.” The purpose of legislation is vital to legislative enactment, but so are other issues. Is it clear what the “purpose” of the Patient Protection and Affordable Care Act is? Another person familiar and involved with the background of the bill’s enactment stated in the Times article that the pending case before the Supreme Court dealing with the meaning of the “four words” involves language that is “so contrary to the intent of those who had written the legislation.” I agree that legislative intent is also quite an important matter in ascertaining the meaning of bills and, therefore, the meaning of laws which incorporate the text of the enacted bill. But what was the intent of this legislation? There is no published legislative history, i.e., committee or conference committee reports, to help us answer these questions about purpose and intent. This is where Catholic legal theory could well have a role to play, but a sound approach to legislative drafting and interpretation also do, too.
Throughout my almost thirty years as a law teacher, I offered courses in legislation. I have long considered that a fundamental course in legislation, especially its interpretation, is crucial to legal education. Not every dean, academic dean, or faculty member has agreed with me. But once again, I make my appeal for the inclusion of this kind of course in indispensable legal education. The “Catholic element” of my view is that the human law has to be founded on objective human intelligence comprehending the intelligible reality; moreover, this stated foundation reflects the principle that the law is a servant not the master of society and all its members. Thus, the words of laws—statutes—need to be clear about what is expected and what is not. After all, fair notice to all members of society about the scope and meaning of the law is vital. Hence, it is critical that lawyers have a fundamental grasp of the tools of statutory construction.
These tools begin with a careful evaluation of the plain meaning of the text; then they consider the intent (what were the legislators, or at least those responsible for bills and their committee consideration, thinking and generally discussing amongst themselves); closely related to intent but sufficiently distinct to merit a different discussion is the purpose or what are the purposes of the proposed legislation, i.e., what objective is the text designed to achieve. Once these issues are addressed, the lawyer must consider the coherence of this legislation with the other laws (e.g., the Constitution, related statutes, and pertinent regulations) that have a bearing on the subject matter of the legislation. There are other considerations as well, but these are the fundamental ones. For those who may be interested in what I consider to be these other issues, you may look at my article in Volume 68 of the Mississippi Law Journal beginning at page 225 (1998)—which develops two earlier essays I wrote that were published in Volume 16 of the Seton Hall Legislative Journal (1992).
I believe that one of the continuing difficulties that this law will face stems from the conflict, internal and external, with the laws dealing with patient care and health. While this is not the only one, I suggest that the meaning of Section 1555 dealing with the freedom not to participate in federal health insurance programs will be another source of legal disputes. If my prediction proves to be an accurate one, the occurrence of these disputes may well be a source of how to teach legislation and its interpretation in the future. In the meantime, the interpretative exercises of the Patient Protection and Affordable Care Act will likely continue.