We're in a strange spot right now regarding the health care bill, which looks likely to pass with a reconciliation sidecar. Rep. Bart Stupak is trying to derail the sidecar; in so doing, he is gaining some publicity and perhaps seeking other benefits out of the controversy. I think that his case is bad enough (largely because, as jhw22 pointed out yesterday, he is completely mischaracterizing the relevant provisions of the bill) that he's going to end up switching to a "yea" at the end -- or will at least have few if any colleagues following his lead.
We in the netroots have been doing our customary good job of shaming and skewering Stupak. Another good role for us is to point out that if there is a problem, it can be solved without blocking the bill. We have to cut off Stupak's legs -- the other Members' votes that he claims to have supporting him. We do that partly by political pressure, partly by factual refutation. This diary points out that whatever it is that Stupak is concerned about can be fixed with a simple promise by Obama: any ambiguity in the bill can be resolved with an Executive or Administrative Order.
The Controversy
Let's start out with the controversy, for which I'll borrow jhw22's summary from yesterday:
Stupak says that the Senate bill requires insurance companies in the exchange to provide abortion coverage – NOT TRUE. He says that every single enrollee in the exchange must pay $1/month into an abortion fund – NOT TRUE.
States are allowed to exclude abortion coverage from the exchange plans. Insurance companies are allowed to exclude abortion coverage from their plans. There is INDIVIDUAL CHOICE in choosing a plan, if one is offered, that has an abortion coverage rider that a person then must pay a separate premium for to keep regular premiums COMPLETELY SEGREGATED from abortion coverage premiums. The language of the bill honors federal funding laws as they exist and it’s written to honor the law if it ever changes. The language of pages 2069-2078 is ALL ABOUT KEEPING FEDERAL FUNDS (including subsidies and tax credits) FAR FROM abortion funding. The ONLY exceptions are the exceptions allowed by law in the Hyde Amendment.
Simply put: if one CHOOSES to purchase Plan Q with an abortion Rider through Company A, then one pays a separate rider premium. If one buys Plan R without an abortion Rider through Company A, then one DOES NOT pay anything toward an abortion coverage fund.
It looks pretty clear to me that this bill is supposed to go as far, as only so far, as the limits of the Hyde Amendment (which I'd like to see eliminated, but not by trick or subterfuge. We'll repeal Hyde if and when we have the votes.) No provision of the bill clearly mandates abortion funding; Stupak hasn't been able to identify it if it's out there. So that means that, at worst, the language of the bill is ambiguous. Stupak's only plausibly conceivable concern is that the bill contains a small space of ambiguity that a pro-choice Administration could use to pry open a wide hole through which it could fund abortion.
Resolving Ambiguity in a Bill
Luckily, our system is designed to handle ambiguity in legislative enactments. What happens if a bill that has been enacted by Congress and signed by the President has ambiguous language? The Executive Branch, under the direction of the President, resolves the ambiguity. The relevant Cabinet official (in this case presumably HHS Secretary Sebelius) has some latitude from the President to make an independent decision, but even her latitude can be constrained somewhat -- certainly enough to satisfy any reasonable fears that Stupak may have about abortion funding.
This can be done in at least two ways. The first is our old friend enemy the "signing statement", a practice that predated Bush fils but was never substantially abused until he took office.
1. Signing statements
Walter Dellinger and Christopher Kelly grouped Presidential signing statements into three categories:
Constitutional: asserts that the law is constitutionally defective in order to guide executive agencies in limiting its implementation
Political: defines vague terms in the law to guide executive agencies in its implementation as written
Rhetorical: uses the signing of the bill to mobilize political constituencies.
In this case, the signing statement would be "political": the benign use of the Executive Branch's first opportunity to weigh in with its interpretation of ambiguous terms in the bill. A signing statement saying that nothing in the bill will be interpreted to expand or constrict the scope of application of the Hyde Amendment should be enough to address any reasonable criticism that Stupak has.
But here's a problem: there's a good case to be made that signing statements have no legal force. (The discussion in Wikipedia on this point, at the above link, actually looks pretty good.) Maybe that's not sufficient assurance for Rep. Stupak. OK, in that case, we can escalate the assurances given by the Executive Branch: the President can issue an Executive Order or possibly an Administrative Order. Again, President Obama can promise this publicly to Rep. Stupak and his minions as a condition of their voting for the legislation.
2. Executive Orders
You've heard of Executive Orders: the Emancipation Proclamation was one, although that was issued pursuant to President Lincoln's war powers. Here's a list of them. They include FDR's creation of the Work Progress Adminsitration and (notoriously) his order of Japanese internment; Truman's prohibition of racial, ethnic, and religious discrimination in the armed forces and (notoriously) his order to seize the steel mills to prevent a strike; Carter's creation of FEMA; Clinton's prohibiting discrimination based on sexual orientation in the civil service; and many more. What you need for an Executive Order to be constitutionally valid is an explicit or at least implicit grant of the President's authority to make such an Executive Order. I think that the President already has such authority under the bill; if not, it could be granted separately. In practice, only two Executive Orders have been found unconstitutional, and the likelihood that this one would even be challenged -- being redundant and all -- is vanishingly small.
3. Administrative Orders
If may be that the order to honor the Hyde Amendment without expanding it could be handled with something less than a full Executive Order. It would seem (dealing with interpreting statutory ambiguity, after all) to be amenable to a kind of "adminstrative order" known as a Presidential Determination:
A Presidential Determination is a document issued by the White House stating a determination resulting in an official policy or position of the executive branch of the United States government. Presidential determinations may involve any number of actions, including setting or changing foreign policy, setting drug enforcement policy, or any number of other exercises of executive power.
President Obama can certainly offer to issue a Presidential Determination that the health care bill allows the Executive Branch neither to expand or to contract the scope of the Hyde Amendment. The burden would logically then shift to Rep. Stupak to explain why this fix is not sufficient for his needs.
4. Why the federal courts won't intervene
"Aha!" (Stupak's minions may argue), "but what if they courts intervene and change the policy?" They won't. They can't. They can't for multiple reasons, but the knockout blow is delivered by the doctrine of "Chevron deference", which limits the Judicial branch's ability to overturn the determinations of the Executive branch when it comes to interpreting its authority to implement policy.
A two-part analysis was born from the Chevron decision (called the "Chevron two-step test"), where a reviewing court determines:
(1) Whether the statute is ambiguous or there is a gap that Congress intended the agency to fill. (If the statute is unambiguous, and the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails.)
(2) If so, whether the agency's interpretation of a statute is reasonable or permissible. If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.
You can see from the above that there's no way that even the Supreme Court could take whatever ambiguity Rep. Stupak believes exists in the law and use it to overrule the Executive branch's interpretation of it. The law would either have to be unambiguously wrong or the interpretation that the Administration put on any ambiguous provisions was unreasonable. It is unreasonable to believe that this is a real possibility. If it's not a real threat, then news organizations and other politicians should be asking Rep. Stupak why he is worried about something that, in essence, cannot happen. He can be shamed into standing down.
Conclusion
Let's take a moment to consider that Rep. Stupak, who has been a good Democrat in many policy areas, is truly sincere in his belief that this bill changes the law to allow new abortion funding. (If he isn't sincere, we'll roll over him with that argument; this diary is just about what follows if we take his concerns seriously.) If Rep. Stupak is sincere, then the alleged problems in the bill can be solved by acts of the Executive branch. Furthermore, President Obama can and should give Rep. Stupak the assurances that he will take those actions, even if he considers them to be redundant. The more public we make this plan, the harder it should be for Rep. Stupak to say that Obama's assurance to him don't adequately address his concerns.
Once President Obama gives those assurances, then Rep. Stupak should have no legs to stand on in this fight. I'm all for bulldozing him using the mighty power of the netroots Sarcasm Squadron, but let's open a second front in the battle: even if he's right, President Obama can take simple and clear actions that should suffice to let Rep. Stupak and his supporters vote for the bill in good conscience, secure that it does not expand the ability of the federal government to financially support abortions. I'd like to see those simple fixes become part of our discussion of what to do about the Stupak Problem.