If you carefully consider the claims of Obamacare’s defenders in King v. Burwell you will discover that their worst fear, sanctimonious pretense notwithstanding, is not the loss of insurance subsidies for some Americans. The most terrifying prospect for proponents of PPACA is that the Court will let Congress clean up its own mess. They do not want our elected representatives to have another chance to consider the will of the voters while revising Obamacare. And this is precisely what will happen if the justices fail to find anything in the law’s text permitting subsidies to be distributed via federal exchanges.
Justice Scalia said as much, during oral arguments, after listening to Solicitor General Donald Verrilli recite a long list of horribles that would result from a ruling against the Obama administration: “You really think Congress is just going to sit there while… all these disastrous consequences ensue…. Congress adjusts, enacts a statute that takes care of the problem.” Verilli’s response revealed that this is the very contingency that he is desperate to avoid: “Well, this Congress, Your Honor… I… I…” This prompted laughter in the gallery but Justice Scalia was not amused: “I don’t care what Congress you’re talking about.”
Scalia’s dudgeon was provoked by Verrilli’s insinuation that the current Congress is somehow less legitimate than the Democrat-controlled body that originally foisted Obamacare on an unwilling electorate. But, make no mistake, that is what the Solicitor General and his masters in the White House believe. They didn’t view the election of Republican majorities to both houses of the national legislature as a voter repudiation of bad policies and worse management. They saw it as a species of hostile takeover. Scalia’s suggestion that Congress should perform its constitutional role, for them, is evidence that he is a GOP partisan.
Many on the left already take that for granted where Scalia and the Court’s other “conservative” justices are concerned. As Linda Greenhouse wrote in the New York Times just prior to the March 4 hearing, “I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago.” And, if five Republican-appointed justices hand down a ruling that sends the law back to a GOP-controlled Congress for revision, Greenhouse avers that it will seriously undermine what she calls “the honor of the Supreme Court.”
Adopting a similarly sanctimonious tone, left-leaning law professor Timothy Jost recently claimed, “A 5-4 decision invalidating the premium tax credits would seriously call into question the legitimacy of the Court.” People like Verrilli, Greenhouse, and Jost have evidently forgotten who confers legitimacy in our system of government. If the voters give a congressional majority to the GOP, that bestows the only imprimatur that matters. If a Supreme Court justice is nominated by a duly elected GOP president and confirmed by the Senate, that justice is by definition legitimate, even if she rules against the Obama administration.
The Obamacarians have it backwards. They obviously believe the legitimacy of Congress and the Court is determined by outcomes. If a Democrat majority passes a progressive project like Obamacare via parliamentary skullduggery and backroom deals that would have made Lyndon Johnson blush, that is legitimate. Likewise, if the Supreme Court discovers a constitutional right to abortion pursuant to a previously undetected “penumbra” surrounding the right to privacy, that is also legitimate. And it is, of course, legitimate for the executive branch to flout the text of PPACA if that is required to issue subsidies via federal exchanges.
In this alternative constitutional universe, a Congress elected for the express purpose of opposing such rogue behavior immediately forfeits its legitimacy. Countless op-ed pieces published during the past several weeks have attempted to make this anti-democratic case. The Week published this piece, for example, in which a professor of political science at the College of Saint Rose attempts to deal with Justice Scalia’s position. Scott Lemieux asks this rhetorical question: “If Congress screwed up, why should the court bail it out?” His answer? Congressional Republicans don’t like the law and therefore won’t be anxious to save it from itself.
This is an illuminating comment. The voters gave a majority to the Republicans so they could kill PPACA. As Michael Barone pointed out after November’s midterms, Obamacare was an important motivating factor for the voters who put the GOP in control of the Senate. This is hardly surprising. For years, surveys have shown that the number of Americans who support the law is steadily shrinking. Half of the uninsured want it repealed. Yet Lemiuex believes that SCOTUS would be irresponsible to let Congress handle this: “If the court kicks the ball into Congress’ court, it will promptly fire it right into the Potomac.”
But, if that’s what the voters want, why would Lemieux object? “Perhaps,” he tells us, “this outcome would be defensible if it represented a fair reading of the statute. But the argument that the ACA doesn’t make subsidies available on federally established exchanges is bad statutory interpretation wrapped up in historical fiction.” Predictably, he fails to elaborate because this isn’t his real objection to sending the law back to Congress. Lemiuex is like Jonathan Gruber and most other Obamacare advocates. He doesn’t want the stupidity of the American voter, as expressed through our elected representatives, to thwart “progress.”
This is what all Obamacare advocates truly fear—the democratic process. They know that, if the Court fails to find language in PPACA that authorizes federal exchanges to issue insurance subsidies, then the health care law will collapse without the intervention of Congress. And, as it happens, that body is now controlled by Republicans who are more inclined to heed the will of the voters than were the Democrats who originally crammed this boondoggle down our throats. Nothing scares Obamacarians more than the will of the people.