The Supreme Court had an opportunity, with its ruling in King v. Burwell, to determine whether the United States is a nation of laws or of men. Today, in a 6-3 decision, the Court ruled that we have devolved into the latter.
Although the text of the Patient Protection and Affordable Care Act (a.k.a. Obamacare) clearly states that the government may issue subsidies only through insurance exchanges established by the states, Obama administration bureaucrats unilaterally rewrote that part of the law so that the IRS could dispense such premium assistance through “marketplaces” created by the federal government. The plaintiffs in King sued the government on the grounds that the Executive Branch has no power to thus alter an act of Congress.
Incredibly, SCOTUS has sided with the White House.
In a ruling written by Chief Justice John Roberts, the Court held that the Obama administration was within its rights to revise the language of the statute. This is the second time in three years that Roberts has twisted himself into contortions to save Obamacare from itself. And, just as he did in NFIB v. Sebelius, the Chief Justice ignored both the law and the Constitution to accomplish that dubious goal.
As Justice Antonin Scalia wrote in the following blistering dissent: “Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act.… The somersaults of statutory interpretation they have performed… will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
Scalia summed up his dissent with a rebuke that will undoubtedly become the most memorable phrase associated with the Court’s latest bizarre ruling on this justly reviled health care law: “This Court revised major components of the statute in order to save them from unconstitutionality.… We should start calling this law SCOTUScare.”
And what was Chief Justice Roberts’ reasoning for revising the law in this way? Essentially, he bought the “intent” argument that the White House and the “news” media have been peddling: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
He adopted the government’s argument that the text of the law was somehow unclear: “The phrase an Exchange established by the State … 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.” In his dissent, Justice Scalia responded to this nonsense thus: “That is of course quite absurd.… Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”
Roberts is obviously confused about the role of the Supreme Court in our system of government. The Court’s job isn’t about achieving outcomes. It’s about the law and the Constitution.
And, make no mistake, this ruling does considerable violence to both. Carrie Severino, chief counsel and policy director to the Judicial Crisis Network, put it as follows in a statement released this morning: “By upholding the Obama administration’s rewriting of Obamacare, the Court today took a hacksaw to Congress’s legislative powers. The Constitution makes clear that only Congress can write the laws, not the President or the Court. It’s a sad day for the Constitution when the clear terms of a statute can be ‘interpreted’ away in the service of an aggressively lawless president.”
And that is just what Roberts has done. With this ruling, the Supreme Court permits the Executive Branch to usurp such crucial congressional prerogatives as taxing and spending, while taking upon itself the authority to write laws. This is precisely what the separation of powers doctrine was devised to prevent. It takes the nation across a constitutional Rubicon. And, if something isn’t done about it soon, it will do untold damage to the country.
This, as I have written before, is much bigger than Obamacare. It’s about whether we are a nation of laws or of men. It’s clear that no group of senior citizens in black robes is going to protect us from being “fundamentally transformed” into a thinly veiled monarchy. There is only one group of people the nation can rely on to protect it from becoming a banana republic in which the law means what the bullies with the most money and power say it means. That group of people would be the millions of voters who go to the polls in November of 2016.