’Twas the night before Christmas 2009, and all through the Senate, Democratic leaders were furiously twisting arms and adding special-interest goodies to the Obamacare bill. They pieced it together with much urgency but little caution, in the mistaken belief that they would have the chance to come back and make key technical changes later. But the January 2010 election of Sen. Scott Brown, R-Mass., forced them to pass their slapdash first draft into law.
Thanks to simple drafting errors, their bill as written did not immediately require coverage of children with pre-existing conditions. It unexpectedly killed off a discount program for children’s hospitals buying expensive drugs for rare diseases. It imperiled workers’ health coverage at thousands of companies, forcing the Obama administration to waive the law’s provisions for 222 employers (so far). It also lacked a severability clause — the legal provision ensuring that if a court strikes down part of a law, the remainder is preserved.
Despite this last oversight, U.S. District Judge Henry Hudson preserved most of Obamacare on Monday, even as his ruling struck down its linchpin requirement that all Americans purchase health insurance under penalty of law. Ironically, Hudson preserved the law’s remainders precisely because of its multitude of unrelated riders and the opaque, hasty process by which it had been drafted and passed.
“The bill,” Hudson wrote, “embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care — over 400 in all.” He declined a deeper examination of Congress’ intent with respect to severability, because such an analysis “is difficult to apply in this case given the haste with which the final version of the 2,700-page bill was rushed to the floor for a Christmas Eve vote.”
The ruling highlights the amusing yet important lesson of Obamacare: Nothing good ever comes of thousand-page bills, legislative secrecy and extraneous special interest riders.
As it considers the current bipartisan tax compromise, the lame-duck Congress is showing it has not learned this lesson. Taking advantage of the tax bill’s popularity, it has added dozens of special-interest tax provisions — for ethanol, biodiesel, NASCAR events, wood stoves and Puerto Rican rum, to name just a few.
The fact that an extension of temporary income tax rates for all Americans has proven so controversial, whereas these blatant favors to special interests have not, is a sign of misplaced priorities. It cries out for public-spirited members of the incoming Congress to end the use of “Christmas tree” bills and start legislating for the general welfare, as the Constitution demands.