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April 14, 2010

Major Schadenfreude Alert

Patterico makes an interesting point with regard to the Affordable Health Care For Thee, But Not For Me! Act:

The New York Times reports that Congress may have “unintentionally” voted for its own health coverage to change when it voted for ObamaCare:

The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?

I think it raises a different and more important question: when a bunch of yahoos vote to ratify a law they haven’t even read, how is that law to be interpreted?

I recently published a post titled Why “Intentionalism” Is Not Always Compatible with the Rule of Law. In it, I asked:

If a legislature passes a law that says one thing, but the legislature really meant something else, how should the law be interpreted? According to the plain language of the law? Or according to the intent of the legislature, even if it contradicts the statute’s plain language?

It turns out that my question was not idle or abstract. With ObamaCare, we may be faced with a concrete example. What if ObamaCare says that members of Congress lose their current coverage — even if, as the article suggests, they did not “intend” this?

Do we interpret the law by looking to the clear text, the way those out-of-touch, formalistic lawyers uniformly insist that we do when the text is unambiguous?

Or do we to look to the unexpressed intent of the ratifiers of the law, the way the “intentionalists” would insist we do?

This is an interesting point. While I fully realize that ambiguous legislation is not a contract, I couldn't help but be reminded of a common sense principle I learned about lo! these many years ago.

It's known as contra proferentem for short (or if you're feeling particularly pretentious, Verba Fortius Accipiuntur Contra Proferentem). Try saying *that* five times backwards!

Contra proferentem is a rule governing the interpretation of ambiguous terms in a contract. It states that unclear contractual provisions will be strictly interpreted against the interests of the party who wrote the contract, on the theory that he who writes the contract is in the best position to protect his own interests.

Admittedly this rule is normally applied only to contractual provisions inserted by one party, in cases where the other party had no real chance to negotiate a more equitable outcome. Sound familiar? The intent of the rule is to force whoever wrote the contract (law?) to exercise care and diligence in the drafting of "historic" legislation they never bothered to read the agreement, but it also serves as a check against situations where one party enjoys a superior bargaining position ... such as, say, an arrogant Congress that prescribes health care "reform" for an unwilling public while oh so conveniently exempting itself from the marvelous and many splendored benefits thereunto appertaining.

Yeah, I know contract law has nothing to do with legislation, really.

Still, the logic behind this rule is hard to refute. What a shame we can't hold our Congressional Overlords to the lofty standard demanded of plain old John and Jane Q. Public.

Posted by Cassandra at April 14, 2010 08:32 AM

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They've screwed themselves no matter what they do.

If they try to "fix" it, they'll be admitting they didn't know the provisions they voted on.

If they suck it up and abide by that which they did to themselves, they'll go nuts trying to find an insurer willing to write a "gold" policy for peanuts.

If they ignore the provision and decide to proceed as if nothing happened, the IRS will come knocking on their doors.

I predict that Max Baucus's staffers are shortly going to be joining the ranks of the unemployed -- *they* are the ones who wrote the bill.

Posted by: BillT at April 14, 2010 11:52 AM

This is too hucking filarious! Your tax dollars (being squandered) at work. We are laughing our pucking fosteriors off at this!!!

Posted by: I Call BS at April 14, 2010 12:18 PM

Who is this "Major Schadenfreude" and why is he on alert? Is he some kind of military doctor?

Is this some new Neo-con madness? What about his wife and family?

Reflexively, I blame Bush.

I liked this web site a lot better when even a cave man could understand it. Your clever double entendres have me confused.

Posted by: Don Brouhaha at April 14, 2010 12:25 PM

If they ignore the provision and decide to proceed as if nothing happened, the IRS will come knocking on their doors.

To offer them Cabinet level jobs.

Posted by: Yu-Ain Gonnano at April 14, 2010 12:33 PM

OK I need to clean my monitor off now. Hoist by their own petard?

Posted by: Oh Hell at April 14, 2010 08:39 PM

Looks like a job for the Supreme Court. Yikes...

Posted by: camojack at April 15, 2010 01:28 AM

In light of this, I think Major Schadenfreude deserves a promotion.

Gee, ya think? That provision does provide ammo to the revolting peasants. Legislation is a form of a contract, is it not?

Posted by: Cricket at April 15, 2010 08:26 AM