One would hope that our laws and their enforcement would satisfy a basic principle, namely that if a law is Constitutional if expressed with one set of words, it should also be Constitutional if expressed with another set of words, which have the same meaning and produce the same outcome.
Thus, if we have a Constitutionally valid law that requires or circumscribes X in situation Y, and Congress chooses to write this law in French rather than English, the Supreme Court would not hold it un-Constitutional because it is written in French.
In the Supreme Court argument this week over the mandate in the Affordable Care Act, call Obamacare, by its opponents, and Obamacares, by its supporters, Justice Kennedy, widely viewed to hold the swing vote, asked this key question:
"Let's assume that it (Congress) could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued this is what the government is doing; it ought to be honest about the power it is using and use the correct power. On the other hand, it means that since .... Congress can do it anyway, we give a certain amount of latitude."
I like this question a lot, with one exception, namely the reference to "national health service, single payer." The Affordable Care Act involves health insurance, not health services. Kennedy seems to be referencing a British-type system in which the government directly provides health care services. That's not's what's going on in the Affordable Care Act.
So, had I been Kennedy, I would have replaced the words "health service, single payer," with "health insurance."
This issue aside, Kennedy is saying, "Look, this law was written in French, not English, but in English it says, 'Congress is going to provide the relevant uninsured population with a health insurance policy (or a choice of policies), tax everyone (hit everyone with a penalty) in this population, but provide a rebate of the tax on a sliding scale based on the individual's income.'"
How will Kennedy come down on this? On the one hand, he's saying Congress and the president were being dishonest/disingenuous in using French, not English. On the other hand, he's saying that Congress should be allowed to use what language it wants as long as the translation back to English is legal.
As followers of my blog know, I'm running for president on the Americans Elect platform and am, together with five Nobel Laureates in Economics, advocating the Purple Health Plan , so I'm not keen on Obamacare(s). The main concern is not with its objective, but with our ending up with a Balkanized systems of federal-supported health care that operates with no overall cost control and that will surely drive our nation broke. Everyone needs a basic health insurance plan. We can achieve this objective in an astonishingly simple and affordable manner with the Purple Health Plan.
This said, I don't think laws that are legal in English should be illegal in French. Justice Kennedy should rule the mandate legal because otherwise he will be ruling on language, not substance, which is not his job. He's not a keeper of our words. He's a keeper of our rules of behavior and interaction, economic and otherwise. These rules live independent of their intonation.
If Kennedy does his job, the mandate will be approved, and Obamacare(s) will be the law of the land. Were I to win the nomination of Americans Elect and then win the presidency, I would enforce the law. But I would also seek its repeal and replacement with the Purple Health Plan.
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