Posted on 06/25/2015 2:53:03 PM PDT by SeekAndFind
With his opinion in King v. Burwell, Chief Justice John Roberts has sent a clear message to Barack Obama, Harry Reid, and Nancy Pelosi: “You can count on me.” Or, to use the language of younger readers, “I got your back.” In the face of clear statutory language indicating that federal subsidies are available only for insurance plans purchased through “an Exchange established by the State,” Justice Roberts — and five other justices — rewrote the law to enable tax credits for insurance purchased through federal exchanges as well.
In so doing, the justices not only saved the individual mandate, they essentially saved Obamacare. Had they ruled the other way, Americans living in the 34 states without a state exchange could no longer have purchased subsidized insurance on the individual market. As a result, the cost of the insurance would have grown to the point where consumers would no longer be required to purchase it. Under Obamacare, the individual mandate does not apply if the cost of insurance exceeds 8 percent of the taxpayer’s income.
This result would have been catastrophic for Obamacare — gutting a key provision — but whether it would have been catastrophic, meaningless, or even potentially beneficial for individual Americans would have been entirely up to the elected branches of government. After all, a Supreme Court decision applying the clear language of the statute wouldn’t have mandated any particular congressional or presidential reaction. Congress would have been free to reform Obamacare, rewrite it to include federal exchanges in the subsidy scheme, or enact entirely new policies.
The Supreme Court, however, decided not to take any chances on democracy, so — in an opinion long on insurance-economics analysis and short on statutory or constitutional reasoning — it effectively changed the statute. Why? Because of the entirely speculative real-world effects. Here’s Justice Roberts:
Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid.
Yet this is pure conjecture on Justice Roberts’s part. He does not, in fact, know whether insurance markets would be destabilized because he does not know the congressional response to a contrary ruling. He distrusts Congress, so he’s going to “fix” their mess.
He made this distrust manifest earlier in the opinion when he took a swipe at the drafters, noting that Obamacare “contains more than a few examples of inartful drafting” and that “Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’” But despite (or because of?) this mess, the Court felt the need to preserve the Obamacare they wanted to see, not the Obamacare Congress drafted and the president signed.
The end result is rule by bureaucracy, with the backing of the courts. Recall that the genesis of this case was the IRS’s unilateral act of writing regulations that contradicted the statutory language by extending tax credits to insurance purchased on federal exchanges. The bureaucrats defied the democratic process, only to see their defiance validated by the highest court in the land.
While this may be progressivism, it is not democracy, and it is certainly not the government as outlined in the Constitution. Justice Scalia, writing in dissent, understood this well:
The Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.” Lamie, supra, at 542. In the meantime, this Court “has no roving license . . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.”
Given the Supreme Court’s role in preserving, protecting, and — where necessary — rewriting Obamacare, Justice Scalia proposes renaming it “SCOTUScare.” But the Supreme Court is but one part of an increasingly unified federal technocracy. The Court’s decision is distressing but predictable. After all, when it comes to progressive reform, they’re all in it together.
— David French is an attorney and a staff writer at National Review.
This is truly a disasteer for our country and the rule of law. With this decision as precedent, the white hut can alter any existing law to say what he wants it to say and the legislature be damned. This is really Alice in Wonderland stuff.
What kind of stupid statement is that? Is Roberts retarded?
The LAW said STATE exchanges and not FEDERAL. That is how CONGRESS WROTE IT.
Maybe its time to put a fine point on it. Begin to challenge other laws in the Federal courts by saying the plain language of the law really sans something different, based upon Robert’s decision. And I mean clog them courts.
Why even bother with the formality of going to court?
Laws are meaningless, per the US Supreme Court—Ergo, We the People are neither governed by, nor accountable to, anything now.
Let anarchy reign.
When I heard this sad news today, I was dumbfounded. How could such a travesty be?
When I found this thread I knew it was time to make a sorry admission and issue an apology to all at FR. Back when everyone was jumping on Roberts, I preferred to assume he had pulled some nifty trick on the liberals by making nobamacare easier to kill, particularly with the Origination Clause by making it a tax.
Boy, was I wrong. There was no need to blackmail him with his adopted kids, Roberts clearly is a new World Order guy and its hard to argue W did not know this when he tapped him for SCOTUS.
Later listening to Rush, he mentioned an article that might give some brightness in our dark day about how the libs are stepping in it big time. I will find it and do a link.
I will now go stand in the corner......
I may send Roberts a beginning reader, further asking him why in the world did he spend money for a law degree when he never learned to read or write? Some group is blackmailing him.
Obvious that Roberts is either corrupt or being blackmailed. I suspect corruption. I have absolutely no hope that this court will do the right thing on marriage (or any other issue that Massah Obola orders him to rule on).
You are all in for Cruz so all is forgiven.
I am not sure I understand the logic of this. Congress was not a party in this case. The plaintiffs were individuals who wanted the law to be enforced as enacted, not to be changed at the whim of the executive. The chief justice, in this case as in the first case, took the position that a workable national health care system was of such importance that the court was justified in rewriting the law through interpretation.
I am not generally a fan of this congress but to put the onus on them to enact a 2nd law specifying that they really meant what they said in the first law is ridiculous. Even if the law as enacted did not conform with the intent of some members of congress or even if there was a drafting error, they had the power and responsibility to get it correct before enacting it into law. The proper course would have been to say that if Congress wanted to have the provisions apply in all states they could enact a law specifying such, not the other way around.
Given the history of this law, when it still does not work even after two Supreme Court rescue missions, what happens. Does the executive and court rewrite it again or do they finally buck it back to the congress.
“I may send Roberts a beginning reader, further asking him why in the world did he spend money for a law degree when he never learned to read or write? Some group is blackmailing him.”
I really can’t say whether or not he is being pressured, I wouldn’t be surprised if he wasn’t. John Roberts doesn’t strike me as an honorable man terribly concerned with the limits of the law or really any kind of Constitutional structure. If he cares about anything at all legally speaking its probably the opinion of his ivy league indoctrinated peers.
Given how little he cares for the history or structure of our republic Reading is not his problem. Foresight is but in his case he is only concerned with his own lifetime.
SCOTUS=Newspeak
Roberts has been compromised and needs to be removed from the bench
Thanks.
That article heard about on Rush is: http://www.nationalreview.com/article/420211/left-activist-peak-kevin-d-williamson?target=author&tid=903320
The writer hits the liberal nail on its head, but stops short of predicting when the pendulum’s leftward swing may end.
I know if Cruz can get in he will make it #1 priority to reverse as much nobama shite as fast as possible.
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. 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. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.
This is a Conservative Judge's view of their role e.g. “to respect the role of the legislature and not undo what they have done.”
I have listened to Conservatives scream for more than 40 years that they want Judicial restraint and they don't want Judge made law. They get a CJ deferring to the legislature and they scream if the decision doesn't go their way.
I've come to the conclusion that Conservatives and Liberals both want a Court that only agrees with their political point of view.....
In his closing, the Chief Justice expressed a view of the role of Congress and the Court that I could easily support. My problem is not with his statement, but with the fact that he did not follow it.
For the sake of discussion, I will concede that the intent of Congress was to do good things such as strengthening health exchanges and providing affordable care to as many people as possible. However, the law was not just a statement of laudable intent. It included a very detailed and explicit road map of how that intent was to be achieved. Indeed,the law was so detailed, it consumed thousands of pages.
This particular case was centered on the provision for limiting payment of subsidies to people enrolling in exchanges established by states. Whether in hindsight this structure was wise or not, whether it advanced the overall laudable intent of the law's sponsors or not, it was within the power of congress to structure it this way and was approved by a majority of congress in the exact form and language written.
By the time the executive branch (IRS) started crafting regulations to implement the law, they determined that it would not work as written so they departed from the language of the law and extended the subsidy provision to exchanges established by the Department of HHS. The suit was brought by private individuals because they were harmed by an alleged improper action by the IRS. Their objection was to an overreach by the IRS, not the Congress. Indeed, they supported the plain language of the law.
In direct contrast to his expression of respect for the role of congress and deference for their supremacy as the exclusive power in crafting legislation, he trashed them for being sloppy in their writing and structure and dismissed their collective understanding of the English language. He combined his understanding of the intent of the legislations sponsors with his opinion that the drafters of the law were incapable of using the English language to express their true meaning and concluded that the court had the power to, through interpretation, change what a majority of congress had approved.
I know I have taken the long way around to say that I don't agree that his was the action of a conservative jurist and that those of us offering criticism are being inconsistent. In this instance, the Chief Justice talks a good game but acts entirely different. He ignores the fact that Congress is still in business and, if they made a mistake in drafting or used language contrary to the sponsors intent, the law as written was still the law that was approved by a majority of Congress. If correction or change is necessary to achieve the intent, it is up to congress to take that action, not the court. Expediency, changed party alignment in congress or speculation about some unknown impact on individuals is certainly a political consideration but is not justification for the judiciary to usurp the power of Congress.
That is exactly what the CJ is saying and that's the same thing he said the first time around.
Its not the Courts place to toss an entire statute unless there is a compelling reason to do so...that's called judicial restraint.
It's clearly the majority of the SC’s view that if this needs to be fixed then the Congress must fix it.
I know such a decision sorely pains our do nothing poll driven in it for themselves politicians but that's what they have to do if they want to change the statute. The Roberts Court is not going to bail them out .... and rightfully so in my opinion.
i wonder if those children Roberts has are his in the legal sense, or if not, if he participated in child trafficking.
Congress wrote the law clearly and deliberately. In absence of any constitutional issue, the Supreme Court was obliged to accept it was written, wisely or unwisely. Instead, they chose to fix Congress's malevolent, scheming mistake!
These idiot Republicans with all their outrage are an embarrassment.
If Congress would do its job there would be no need for Judicial activism.
SCOTUS today took it upon themselves to change a law which was perfectly clear, if utterly unwise.
The 'Rat-controlled Congress wrote the law as they did to induce red-state governors to fall into line in its implementation or face a voter backlash. However, the 'Rats miscalculated their political gambit. The red states deigned not to comply, as was their right, thereby kicking a hot potato back into the lap of Congress.
Now, in a lawless decision, the Supreme Court has seen fit to rescue Congress, to snatch that hot potato from their lap.
The takeaway? SCOTUS is scum for defiling the law!
The upshot: The GOP is relieved at not being obliged to fix ObamaCare with a Traitor still in the White House!
You are profoundly confused.
The decision went the opposite way the people's representatives in Congress voted. No matter how loudly those same critters claim what the really meant! Drafting error, my ass! The exchange requirement was there on purpose to blackmail the states. The 'Rats squealed when the blackmail failed. And our worthless Supreme Court bailed them out!
The correct outcome was to invalidate the government's reading of the law and let today's congress and our worthless president deal with the resulting mess.
Your arguments are political not legal I get that but you might want to read the opinion.
Robert’s specifically addressed the argument that the exchange requirement was there on purpose to blackmail the states.
“Congress evidently believed it was offering states a deal they would not refuse.”Brief for Petitioners 36.
Congress may have been wrong about the States’ willingness to establish their own Exchanges, petitioners continue, but that does not allow this Court to rewrite the Act to fix that problem. That is particularly true, petitioners conclude, because the States likely would have created their own Exchanges in the absence of the IRS Rule, which eliminated any incentive that the States had to do so. Id., at 36–38.
Section 18041 refutes the argument that Congress
believed it was offering the States a deal they would not
refuse. That section provides that, if a State elects not to
establish an Exchange, the Secretary “shall . . . establish
and operate such Exchange within the State.” 42 U. S. C.
§18041(c)(1)(A). The whole point of that provision is to
create a federal fallback in case a State chooses not to
establish its own Exchange.
Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal.
The SC ruled exactly the way that Robert’s indicated they would the first time around. Anybody believing otherwise was/is delusional.
The Roberts Court will not overturn statutes passed by Congress except in those rare cases there is absolutely no plausible argument of statutory construction to do so.
Its up to the Legislature to fix this.....
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