Eight years after enactment, the Affordable Care Act (ACA, or Obamacare) remains a boiling cauldron of controversy. Part of the problem is that, like much contemporary legislation, it is a verbal “matryoshka” — a Russian nested doll with law inside of law inside of law inside of law.
As Democrats rushed the ACA toward passage in early 2010, Republicans pointedly asked, “Have you read the bill?” Then and today, this is a largely empty question. Practically no one has ever read the law in a meaningful sense. It’s not at all clear what “read” even means.
For an analogy: I recently came upon a Russian expression, written in the original Cyrillic: Ба́бушка на́двое сказа́ла. I know that alphabet, so I could “read” it aloud: “Babushka nadvoye skazala.” But that is reading only in the shallowest of terms. I know “babushka” means “grandmother” but haven’t a clue about the other two words. So, I’ve read the sounds, but know only that it’s something about Grandma.
Google Translate informs me that the passage means, “Grandmother said in two.” I know all four English words, so now I’ve read the sentence literally, but it makes little sense. More research reveals that a better translation is, “Grandmother said two things.” I read that with no difficulty, but what does it mean? Whose grandmother? Which two things?
Finally, Google tells me this is a Russian folk expression meaning, “No one knows for certain.” Eureka. At last, I have truly read the sentence.
Reading the ACA is a similar experience, only stretched across a thousand pages of tightly packed legalese. The randomly chosen Section 2001 says:
“Section 1902 of the Social Security Act (42 U.S.C. 1396a) is amended—(1) in subsection (a)—(A) by striking ‘and’ at the end of paragraph (72); (B) by striking the period at the end of paragraph (73) and inserting ‘; and’; and (C) by inserting after paragraph (73) …”
I can “read” that passage, but it’s babushka nadvoye skazala all the way — a parade of meaningless sounds. Understanding it means diving into the equally impenetrable Social Security Act, which likely points to equally obscure passages in still more laws.
In 2012, the U.S. Supreme Court heard a challenge to the ACA: NFIB v. Sebelius. Soon afterward, I heard a speech by Mike Carvin, an attorney who argued against the Obama administration’s case before the Supreme Court. Carvin said that after oral arguments concluded, he chatted with an attorney for the administration and asked whether he had, in fact, read the entire law.
By Carvin’s telling, the response was a laugh and an answer along the lines of, “Are you nuts?”
My colleague Maurice McTigue notes that when he served in New Zealand’s Parliament, he and his colleagues faced the same problem. Bills were crafted to be unreadable. Often, members voting on them — even the authors — could only guess what the laws would actually do.
Finding this injurious to democracy and the deliberative process, New Zealand’s Parliament adopted a crucial reform. The front of each bill would include a set of explanatory notes, explaining the law and its effects, written in simple, easily understood language. Importantly, the explanatory notes were written by neutral, nonpartisan clerks — professionals who wished to be factual, not advocative.
Of New Zealand today, McTigue said, “It is normally possible for anyone to pick up a bill and get a reasonable understanding of what it does in about 10 minutes.”
This obscurantism is not unique to this law or to one party. But the size and scope of the ACA means that surprises have been popping out of the law for eight years — especially problematic in such a critical and controversial piece of legislation.
So even eight years in, can anyone anywhere accurately claim to have read the entire law?
Babushka nadvoye skazala.
