As we noted last week, Congress screwed up the language of their health care bill at their own expense. But, thanks to Obama administration lawyers, members and their immediate personal staff might be able to keep their existing health insurance coverage — for now.
The problem, as Heritage and others noted, is that the bill’s language says they have legislated themselves out of their own coverage under the Federal Employees Health Benefits Program (FEHBP) and into the newly created health insurance exchanges they’re imposing on the states. Without the timely intervention of the administration’s lawyers, the language might require them to do so right away.
But the administration’s interpretation, which rescues Congress from its own handiwork, is not the only possible one. The new law doesn’t spell out when Congress will lose its current coverage. In such a case, the standard rule is that when a specific legislative provision has no effective date, the provision takes effect upon the date the law is enacted. The FEHBP-dumping provision has no date, but the health insurance exchanges do have an effective date: 2014. Under the standard rule, congressional members and staff would be up the proverbial creek without a paddle — or FEHBP coverage — for the next four years. Presumably, they would have to buy insurance coverage on the open market.
The Congressional Research Service (CRS) says “reasonable arguments” can be made that lawmakers can keep their FEHBP coverage until the state-operated exchanges or “other health plan” is made available to them. But that’s not the norm. According to CRS, “In general, when interpreting statutory language, courts often assume that Congress means what it says.”
Such an assumption would be a giant leap of faith. The screw-ups and unintended consequences in this massive legislation are too numerous to be ascribed to anything resembling pre-meditation.
Congress and its staff are lucky. The president’s team at the Office of Personnel Management, which administers the FEHBP, chose not to take Congress at its word, or follow the traditional canons of legislative construction. They must be — how shall we put it? — special. So, assuming there are no successful lawsuits to the contrary, OPM probably bought them a few years to ponder what they did to themselves — and their staffs — and their fellow countrymen. Too bad the latter can’t bet on getting any special fixes.
