Thursday, September 24, 2009

John Dickerson on the "Fine Print" of Health Care Legislation

Yesterday, John Dickerson at Slate delved into the nitty gritty of the lawmaking process.

Dickerson's piece (you can link to it here) brought to mind a law school course called Legislation. Among other topics, the class examined the issue of whether judges and lawyers -- when confronted with ambiguous statutory language -- can (or should) rely on "legislative intent" or whether they should adhere strictly to the "plain meaning" of the statute.

According to Dickerson, Olympia Snowe and other Republicans are requesting that Congressional Democrats put the proposed health care bill into "legislative language" prior to bringing the legislation to a vote.

"Legislative language" refers to the actual, legalistic, technical [mind-numbingly confusing?!] language that that will appear in the US Code. The Democrats and President Obama, anxious to keep the process moving forward, want lawmakers to vote yea or nay based on the "conceptual language" -- plain, readable language that sets forth the general framework of the new law.

Dickerson argues that lawmakers should be able to decide whether a proposed bill is acceptable based on the conceptual language, and he analogizes to someone purchasing a house without actually reading every bit of fine print in the legal documentation:

Think of it like buying a house: I want to buy this house at this price. I make an agreement with the seller. A month later I sit down in a lawyer's office and go through page after page of legal jargon with someone I trust—not just to have the expertise to explain it to me but to protect me from anything I don't want in there. I could study real estate law, read the contract, and make my own determination—but I have a job and a family. If there's a problem with the final language of the contract, my lawyer alerts me and modifications are made (or I back out). That's what finance committee Democrats say Republicans will be able to do when the health care language is crafted into final language that will come up for a vote on the Senate floor.
Dickerson's piece is well-reasoned, and it is hard to expect that even the most diligent Representative or Senator has time to read every word of the hundred (and even thousand) page bills that are routinely enacted.

However, he probably overstates his case when it comes to health care reform.

Some of the key debates with which people are currently grappling do turn on the details, and in order to assess how the law will change the delivery of health care in the future, legislators need to examine the actual (fine print) wording on which decisions will be based. After all, many of the alleged insurance industry abuses (particularly as regards determinations not to cover certain medical expenses) which the President is attempting to reform are themselves based on "the fine print."