I nearly did not write this post this week. (I’ll pause while some of you wish that ‘nearly’ weren’t a part of that sentence.) I started the week with a mild toothache. By the time I reached my dentist on Tuesday morning, that niggling pain had bloomed into an infection that spread from my tooth to my jaw bone to the soft tissue of my face. Despite oral penicillin (and Vicodin!), I developed a high fever, the left side of my face swelled to grotesque proportions, and my jaw seized shut. I ended up in an ER on IV antibiotics.

While portions of the federal government ground to a halt due to insufficient funds, I held ice packs to my head and prayed quiet prayers about septicemia and the relative impermeability of the blood-brain barrier. Vaguely, in the background, I knew Congress and the president were arguing about health care. About funding the PPACA. Obamacare.

My heart goes out to folks harmed by the federal government shut-down this week. I also agree with those who are dismayed that Capitol Hill can’t reach a consensus sufficient to end the current crisis. It’s their job to find workable agreements, after all. That much, I hope most of us can agree on. Since we’re not here to agree, let’s talk a bit about Obamacare, the source of this week’s trouble in Washington . . . .

Once, the loudest cry from the right against Obamacare was that it, particularly its individual mandate, was unconstitutional. They, perhaps most centrally, argued that compelling individuals to enter the insurance marketplace against their will exceeded Congress’s authority under the Commerce Clause.

Our side made its arguments. We litigated up to the Supreme Court. We lost. I don’t think we should have. I do think the individual mandate as written exceeds the scope of Congressional power. I do believe that the penalty paid by individuals failing to comply with the mandate is exactly what the language of the law passed by Congress says it is: a penalty, not a tax. But file that under “Topics on Which John Roberts’s Opinions Matter and Tamara Tabo’s Do Not.” (It’s a big file, but I’m the only one troubled by its size.)

The courts continue to iron out the wrinkles. The courts must still determine the implications for faith-based employers, for example. For the time being, though, we’re looking at a law deemed constitutional.

But that’s not where the democratic process of challenging a law ends, even if that’s where it ends for appellate litigators.

Defunding legislation is a legitimate, lawful Congressional action. Constitutionally, Congress holds the “power of the purse.” It funds executive action, or it doesn’t. Often it uses amendments to its annual appropriations bills in a variety of ways that prohibit executive action. For example, Congress has attached the Hyde Amendment, which forbids taxpayer funding of abortion except in cases of rape, incest, or threat to the mother’s life, to the appropriations bill for the Department of Health and Human Services each year since 1976. You might not like that either, but it’s a time-tested strategy. This method of defunding specific provisions of Obamacare would not repeal the law and would only be temporarily effective unless renewed. But it’s an option.

The debate over wholly defunding the PPACA — or either side rejecting a budget that either does or doesn’t include funding, depending upon that side’s views — is just as much a part of the democratic process as the original passage of the PPACA. Perhaps more so, since now lawmakers have actually had the chance to read and contemplate what the proposal actually proposes. That is, the people’s elected representatives, acting within their constitutional power, are vying to effectuate the will of their constituents.

That’s what Congress was doing when they voted for the bill or didn’t. That’s what they are doing now when they are trying to defund the program or not. When President Obama threatens to veto any legislation that does not fully fund Obamacare, that is what he is doing. This democracy business is a messy, rancorous one at times. Weeks like this spotlight that mess and rancor. But any argument that this week’s Congressional gridlock is a sign that we have veered off the constitutional path is plainly wrong.

If you don’t like how your Senator or Representative has behaved in the past few weeks, don’t support them in the next election. (Mine –Senators Ted Cruz and John Cornyn — I’ll take in that order. My Congresswoman is Sheila Jackson Lee, who with all due respect, I’d happily leave.) Don’t, however, assume that the voters who elected another state or district’s members of Congress are as displeased with them as you are. That error falls squarely under the fallacy of “Everyone Else’s Elected Officials Are Unreasonable Nutjobs But Mine.”

Once we get past the question of constitutionality of the individual mandate, down to the pure policy level, you’ll find I’m not the most unsympathetic conservative with whom to discuss health care reform. The current system is not one that has benefited me personally. I have been intermittently insured and uninsured over the years. When I was insured, I racked up a handful of diagnoses that haunted me in the form of “pre-existing conditions” when I sought private insurance later, making that coverage cost-prohibitive for me. While uninsured, my appendix burst. Several surgeries and a month-long hospital stay later, I took home six figures worth of out-of-pocket medical debt. Hell, this week, I had to pay for my health care — including the ER visit and IV drugs — out of pocket. My current employer offers health coverage, but it doesn’t kick in until 90 days after new employees begin working. So, if you want to talk about subsidizing my health care expenses, I will not forget my conservative principles, but you’d better believe I’m willing to at least listen to what you have to say.

And that’s democracy. We have competing interests. We have competing principles about liberty and proper governance. We may even have, within ourselves, competing interests and competing principles. When we hash it all out, it gets messy. Agreements come slowly sometimes, often at real cost. When we insist that it’s only the other side’s intransigence that has stalled the process, or that the process is itself broken because we don’t like the outcome, we’re missing the point.

Then again, on ATL as in our democracy, you don’t have to agree with me on that either.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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