The rule of law was formally put out to pasture by the Supreme Court on Thursday, as we discovered that the plain text of a law matters less than what the party in power thinks it should mean.
On a 6-3 vote in the King v. Burwell case, with Chief Justice John Roberts and Anthony Kennedy joining the liberal bloc vote of Ginsburg, Breyer, Sotomayor, and Kagan, the Court decided to allow the federal ObamaCare exchanges to continue distributing taxpayer subsidies for health insurance, even though the Affordable Care Act explicitly reserves those subsidies for state exchanges, and there is ample evidence the authors of ObamaCare knew what they were doing when they inserted that language into the law.
They simply changed their minds later, when the political ground shifted. Most states didn’t set up exchanges, several those which did abandoned them, and cutting off the ObamaCare subsidies could have scuttled the entire scheme.
Much of the punditry on both Left and Right leading up to the decision assumed the Court would nix the federal subsidies, sticking congressional Republicans with the outrageous burden of saving a law none of them voted for. (Let’s be honest: after watching the new Republican majority in action, it’s highly likely that they would have done so, with minimal political pain for the Democrats.) If the Internet is running a bit slow today, it’s probably because ten thousand “What the GOP Must Do to Save ObamaCare Now” articles are being deleted.
Justice Antonin Scalia, in dissent, growled that ObamaCare should be called “SCOTUSCare” now, because the Supreme Court has rewritten it twice to keep it alive. It should go without saying that this is not how the American system of government was supposed to work.
The majority decision actually does make it clear this is a pure exercise of political power. Chief Justice John Roberts writes, after reviewing the debate over what the “exchange established by the state” language means:
The upshot of all this is that the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.
What an amazing pile of drivel, so utterly unworthy of the Supreme Court. And what a dangerous precedent to set for the final destruction of the American system of limited powers and equal branches of government. The proper remedy for a poorly-written “ambiguous” law is to send it back to the legislature to fix it, not let a block of liberal justices declare that ambiguous language is the gateway to even greater power.
Writing laws clearly is foolish under this precedent, at least for the acolytes of Big Government. Far better to slip in ambiguous language that can be read however the Party finds expedient down the line.
Also, the Left has strong incentives to pass badly-designed laws that cannot survive the proper interpretation of American constitutional law, because Roberts has twice now demonstrated that the American system will be torn apart and rewritten to keep the bad law alive. Roberts has issued an unlimited Cloward-Piven “orchestrated chaos” hunting license to every Democrat president and their congressional allies. Write your laws to inflict maximum damage on the American system – the most damage possible to freedom of religion, freedom of speech, property rights, and the very rule of law itself – and the Roberts court will make sure your legislative bombs destroy their targets.
If 45 states had set up ObamaCare exchanges, you can bet the exact opposite meaning of the “state exchange” line would have been insisted upon by Democrats… and Justice Roberts would have backed them all the way. The rest of the Roberts decision looks at what other parts of the Affordable Care Act imply about what its drafters probably wanted to happen. All of that language could have easily been reversed to insist that what the architects of the ACA really wanted was to punish state governments for refusing to do their part for the Peoples’ Glorious Health Care Reform by setting up exchanges.
The one sure bet is that every ambiguous law will be interpreted in a way that expands government power and reduces personal freedom – in this case, the freedom to keep your own money and spend it as you see fit, since those subsidies amount to forcing some people to pay for part of other peoples’ health insurance premiums.
Roberts writes that: “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral,” citing several studies to that effect. This becomes a reason for the judiciary to legislate by once again rewriting a bad law to save it from the consequences of its drafters’ foolishness.
It’s increasingly difficult to see what we need Congress for, at least in its current large and expensive incarnation – why not go with the model used by totalitarian countries such as Iran, with a small “council” that drafts legislation in accordance with the ruler’s wishes (after the ruler has wisely divined what the public wants and needs, of course) and a mighty judiciary to make long-term fixes that the ruler can’t easily implement by executive decree?
We spend a gigantic amount of money on electing Congress and the Senate, and keeping them in high style while they live in Washington and accumulate ridiculous fortunes wildly out of proportion to their salaries. What’s the point of that expense, if their only purpose is to enable unlimited powers for the executive and judiciary? That’s a pretense of republican representation, a theft of moral authority our new endlessly mutating super-laws do not deserve.
Justice Scalia begins his dissent by noting, “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious – so obvious there would hardly be a need for the Supreme Court to hear a case about it.” Of course, six of his colleagues reached the opposite conclusion by putting politics over the rule of law, so Scalia goes nuclear – and makes a very cogent point about how Roberts’ analysis of what the ACA authors “really meant” makes no attempt to explain why they inserted the language Roberts judges to be meaningless:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.
“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted.)
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
As to the business of seeking hidden meaning by considering the political “context” of a law, Scalia growls, “I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”
Not any more, Justice Scalia. A new post-Republic age has dawned, in which laws are merely vessels for gigantic grants of raw power, which the State will never surrender, no matter how clearly it fails to live up to the premises under which the power was seized. ObamaCare lives. The rule of law is dead.
