Congress is ceding power to Supreme Court

There was good news and there was bad news from the courts this week for supporters of Obamacare – and for detractors. How is that

There was good news and there was bad news from the courts this week for supporters of Obamacare – and for detractors.

How is that possible?

In Washington, a three-judge panel of the U.S. Court of Appeals for the District of Columbia struck down regulations that allow subsidies for some Americans who get health insurance through federal exchanges as distinct from state exchanges.

Down I-95 in Richmond, a three-judge panel of the Court of Appeals for the 4th Circuit issued the opposite ruling and said the regulations were just fine.

Nothing will change for now, but it is likely the Supreme Court will make the final ruling.

And that is a big problem.

Congress should have the final say on its laws, not the Supreme Court. 

There are no constitutional issues involved in these cases; they are purely matters of interpreting the Affordable Care Act (ACA).  The intention of the law was that everyone who got insurance should be eligible to apply for subsidies whether they received insurance through federal or state exchanges. But some language was unclear.

The customary response is for Congress to simply clarify the language and fix the problem. That should have happened by now.  It should certainly happen after these contradictory rulings.

But it won’t because Congress is feuding like the Hatfield’s and McCoy’s.

Sure, the ACA is the law of the land.  But a passel of Republicans is stilling fighting the Obamacare war. There is no way they’ll cut a deal.

This happens a lot.  The courts, usually the Supreme Court, interpret a law and that becomes the final ruling because Congress is too tangled up to do its basic job – write laws.

David Wessel of the Brookings Institution notes, “Congress, unable to agree on almost anything, is incapable of responding to court interpretations of often-vague statutes even when the Court invites a response.”

Congress is unwittingly ceding power to the Supreme Court because of its own paralysis.

In an article in the Southern California Law Review, professor Richard Hasen documented the decline of Congress’ ability to override or correct Supreme Court statutory interpretations.

He wrote, “In the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of twelve overrides of Supreme Court cases in each two-year Congressional term during the 1975–1990 period, to an average of 5.8 overrides for each term from 1991 to 2000, and to a mere 2.8 average number of overrides for each term from 2001 to 2012.”

Hasen found the dominant cause of this was polarization. “Before the 1990s in Congress, there was more room for bipartisan legislation to reverse the Supreme Court, “ he wrote. “The realignment in Congress and steep dip in the number of moderates in the late-1980s and early-1990s coincides with the steep decline in the number of congressional overrides.”

It’s ironic that the speaker of the House wants to sue the president for grabbing power when Congress is giving it away to the Supreme Court.

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