Rand Paul constitutional amendment on Congress: Does it miss its mark?

Sen. Rand Paul (R) of Kentucky has introduced a constitutional amendment that he says would prevent members of Congress from voting into law special treatment for themselves or for pretty much any other top US federal official.

Why is he doing this? It seems clear he’s aiming at Obamacare provisions that some Republicans say give preferential status to members of Congress and their staffs. There was a lot of talk about that during the recent unpleasantness of the government shutdown and debt-ceiling struggle, if you remember.

The amendment’s language, released Monday on Senator Paul’s official website, seems straightforward. Its first section says, “Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.”

Further sections say similarly that laws have to be equally applicable to the president, vice president, ambassadors, other public US officials, the US Supreme Court, the chief justice, and other federal judges.

That’s about it. Simple, right?

Well, yes and no. The words may be concise, but in this case their effects would be wide-ranging and unpredictable. And in terms of Obamacare, it’s possible that this amendment, if adopted, would have the exact opposite effect of what Paul evidently intends.

That’s why it has drawn some harsh criticism from both ends of the political spectrum.

“It is a shoddy and sloppy piece of work, as if written on the back of a napkin,” writes right-leaning Washington Post pundit Jennifer Rubin.

Some laws exclude lawmakers for good reason, according to Ms. Rubin. Paul’s language would appear to make them vulnerable to lawsuits or criminal prosecution for their votes, for example.

“The problem ... is that it makes no distinction between laws that give special privileges to members of Congress and laws that exclude them from federal benefits for entirely legitimate reasons,” adds Ian Millhiser at the left-leaning "Think Progress" website.

Taken literally, the amendment might mean that every member of Congress is eligible for, say, Medicare, even if they’re not yet 65, according to Mr. Millhiser. To rule otherwise would entail judging a law to be not equally applicable to lawmakers, he says.

As to Obamacare, the situation is this: The insurance exchanges set up by the Affordable Care Act are intended for the use of the self-employed or people who work for a small business that doesn’t offer health coverage and of others who buy individual or family insurance on the open market. They’re not supposed to be used by the employees of large entities.

But during the debate over Obamacare, GOP Sen. Chuck Grassley of Iowa offered an amendment that requires members of Congress and their staffs to buy Affordable Care Act coverage. He thought Democrats would reject this, leaving them open to a charge of hypocrisy. Instead, they embraced it, and it passed.

That means members of Congress and their aides now must buy health insurance through Obamacare exchanges, instead of the existing government Federal Employees Health Benefits Program. In that sense, they are not “exempt” from Obamacare at all, as some Republicans charge.

However, the Office of Personnel Management has ruled that the federal government can continue to pay a portion of the health-care premiums for lawmakers and their staffers. Virtually all big employers engage in this cost-sharing. Some in the GOP, most notably Sen. David Vitter (R) of Louisiana, have pushed to end these contributions, arguing that they amount to Washington’s true Obamacare exemption.

That’s why conservative Republicans tried, and failed, to attach the “Vitter amendment” eliminating these subsidies to the government-funding bill that finally passed last week.

The problem here with Paul’s proposed amendment is that Congress in essence applied special treatment to itself by voting to put members and staffers in the small-business-oriented section of the Obamacare exchanges in the first place. Workers of other large US employers are prohibited from participating in the program.

“So taking all this together, as to members and employees of Congress, the net result of Senator Paul’s proposed amendment would probably mean that Congress would revert back to the employer-provided insurance system in place before the [Affordable Care Act],” writes Steven Schwinn, an associate professor at the John Marshall Law School in Chicago, on the "Constitutional Law Prof Blog."

This is all theoretical, of course, because it is highly unlikely the amendment will be added to the US Constitution. It would first have to pass by a two-thirds majority in both the House and Senate. Then 38 of the 50 state legislatures would have to vote to approve it as well.