WASHINGTON, May 20, 2017 – Most of us know the basics of our government’s system for creating new laws. Yet, the process of taking an idea through the Congress can be extremely daunting, and filled with hurdles, obstacles, delays and inventive political tactics.
Further, even once a law is officially enacted, the courts can weigh in on whether it “stays” a law. Sometimes even the Internal Revenue Service gets involved, but a law as written can suddenly no longer be the law.
To begin, very simplistically, to become a law, an idea is reduced to writing and is presented in either the House of Representatives or the Senate, and eventually (as this discussion needs to get to it becoming a law) it is passed in that forum.
The idea, written down is now called a bill, is then sent to the other body, whose members must pass it in identical form (not even a comma being changed). If the bill is changed, it goes back and forth between the Congressional Houses until both bodies agree on the exact same language. Once completely agreed to by both the House and the Senate, the bill goes to the President for signature.
Once signed, the idea becomes law.
Schoolhouse Rock taught us the basics:
Once a law is established, as we see almost daily, challenges may come, making the status of the law uncertain. Proponents might be hesitant to act in accordance with the new law, and detractors might refuse to follow or implement the new law based on their belief that the court challenges will be successful.
Remember Kim Davis, the Kentucky court clerk who refused to issue a marriage license to a same-sex couple? She was a perfect example of someone refusing to follow a relatively new law, and she ended up serving jail time because of her conviction.
Here then is a discussion of an idea becoming a law, using a current hot topic – healthcare.
Former President Obama’s health care law was passed by the 111th United States Congress and signed into law by him on March 23, 2010. Called the Patient Protection and Affordable Care Act, often shortened to the Affordable Care Act (ACA) and nicknamed Obamacare, this law, and it’s implementation, despite its passage, faced challenges from seemingly every quarter almost immediately.
Congress, mainly Republican members, state governments, conservative advocacy groups, labor unions and small business organizations threw numerous darts at the law. Some religious groups objected to parts of the law that touched on abortion and contraception matters.
As noted, what “is” the law can be debated. After many lower court challenges on Obamacare, the Supreme Court, by example here on two issues, upheld the constitutionality of what was called the “individual mandate” in the law, and ruled on another part of the law that states could not be forced to participate in the law’s Medicaid expansion.
One section of the ACA as written detailed that consumers will only get subsidies “through an exchange established by the state.” The idea behind the law was to encourage the states to establish exchanges. Yet, the IRS, providing yet another twist in an analysis of “what is the law?” (despite the law’s clear language), gave subsidies to consumers in states that did not establish exchanges.
A new law might be on its way. America is now observing the President’s and the Republican-controlled Congress’ attempts at repealing Obamacare and replacing it with a healthcare plan of their own. Congressional Republicans recently passed a new vision for America’s healthcare, called the American Healthcare Act, as a replacement for the existing national healthcare law.
Follow the little red bouncing ball as this new proposed law makes its way through the surprise-filled “what will jump out at you” haunted houses of Congress. Reports are that the bill approved by the House will be sent to the Senate in a few weeks. If the Senate accepts the identical version of this potential new law, it will be sent to President Trump for his signature.
But wait! Even if the Senate wants to approve the exact bill (highly unlikely), the current makeup of the Senate suggests that it will never be approved. The twists and turns of passing a bill mean that the body must pass it by a simple majority vote, and although the Senate Republicans have that majority, the vote might never be held because of the concept of a filibuster.
A filibuster is a tactic any Senator can use to prevent the vote from being taken. A filibuster takes form, literally, when a Senator, during a debate, just keeps talking, making a long speech, and refusing to step down or stop talking, thus preventing the vote on the proposed bill. A successful filibuster can force the withdrawal of a bill.
The filibuster process is even more interesting than simply understanding that no vote might be taken. A filibuster can be stopped by a vote of 60 members of the Senate. In this instance for the healthcare law, the composition of this Senate, 52 Republicans and 48 Democrats, suggests that getting 60 votes to stop a possible filibuster would be impossible.
Going back to the bill as written and sent to the Senate, both House and Senate members indicate that passage by the Senate is unlikely to happen. This means the Senate would make changes to the bill and send it back to the House, whose members would then need to pass yet another bill.
Still another wrinkle in a bill becoming law is a process mostly used in the Senate called reconciliation. It allows a faster consideration of bills that have to do with the national budget. The reconciliation process allows for only 20 hours of debate, effectively negating the use of a filibuster to delay or prevent a vote.
Reconciliation may be used in this situation, as the budget tie-in to health reform was set in the legislative history of Obamacare.
To employ the reconciliation process, a resolution must be passed first by both the House and the Senate.
Following an idea’s path into becoming a law can be a fascinating observation, historically filled with stories so plenty it seems they would not be able to be stored if printed in the Library of Congress.
Add the challenges and legal reviews to the mix and “what is the law” can seemingly be always in flux.
Idea, bill, House or Senate vote, filibuster, reconciliation, Supreme Court, IRS. What is a proposed law to do? Is Russia involved?
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.
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