The Supreme Court, Congress and Obamacare – the perils of poorly written laws

You should be aware that Obamacare is going back to the Supreme Court and that the outcome of this case will be an absolute requirement to know. However, this article raises more interesting questions for examples on two fronts.

Firstly, polling seems to show that even if the Supreme Court finds against Obamacare and strips some of the subsidies out of it, the majority of the American public would like Congress to reinstate them. This is problematic both because the Supreme Court is the ultimate referee of the Constitution and therefore it would be difficult for Congress to go against them, and the fact that Congress is currently Republican dominated who has railed against Obamacare since it’s inception.

For those studying the Federal Bureaucracy (FB), however, it highlights a second, more interesting point – the language of law. The functions of the FB are to execute law and make rules (and to adjudicate but that’s not so relevant here). The reason for this is that Congress tends towards making vague laws based on the principles they wish to achieve, leaving the minute detail to experts within the FB. In this instance however, a poorly worded part of the Affordable Healthcare Act has left this law open to scrutiny by the Supreme Court:

“At issue in the Supreme Court case, King v. Burwell, is whether the law was intended to provide subsidies only for states that set up their own exchanges – as it appears to be written – or whether the subsidies should given to consumers in all states, the majority of which did not set up their own exchanges. (The sponsors of the legislation argue this was the intent, despite poor language.)”

This therefore could be used as an example for both the FB and for congressional role of law making, and the problems therein.