King v. Burwell: An Embarrassing Decision [SCOTUS rewrites Obamacare instead of Congress]

National Review ^ | 06/25/2015 | David French

[etcb]

I apologize for not replying earlier but old folks have to get some sleep.

My entire objection is that, while the Chief Justice talks about judicial restraint, he did exactly the opposite. The law as enacted by congress provided only for subsudies in cases where policies were issued through “state” exchanges. The Executive Branch changed that to define “federal” exchanges as eligible and the court decision upheld the executive change.

The plantiffs in this case did not ask the court to toss the entire statute or even a part of it. Quite to the contrary, they asked the court to uphold the statute exactly as written by congress. To expect Congress to enact a new law specifying that they really intended the law to say exactly what it said would be standing the whole constitutional construct on it’s head.

The Court upheld the Executive Branch in it regulatory expansion of subsidies to federal exchanges alhough the statute enacted by Congress only provided such subsidies in state exchanges. The Chief Justice based his decision on the idea that Congress intended good results from the law but since enforcement as written would result in bad results the Executive was justified in going beyond the written word. That is the exact opposite of judicial restraint.

[montanajoe]

Actually from reading the opinion Robert’s makes it quite clear that in his view should the Court adopt the reading of ACA claimed by the Plaintiff’s then the law would be unworkable. He writes its illogical to assume the Congress would pass a law that is unworkable on its face. (He no doubt gives the current Congress to much credit)

Again he is not going to do the work of the legislative branch in his Court. The GOP can bring suit after suit and pay lawyers and give those opposing the law false hope but they will all be DOA.

The statute will be changed in Congress not in the Courts.

[etcb]

The old phrase “We don’t know what we don’t know” is applicable here. Since the Executive changed the provision relating to subsidies before the law was even implemented, we will never know whether it was workable or not. He did not hold that the law as written was illegal but rather held that it was unworkable. By substituting his political judgment on what is workable for that of the legislative body that wrote the law, he engaged in the worst kind of judicial activatism. It is not required that Congress be wise or even sane, just that they adhere to the constitution.

Just as an example, if a law was enacted with the stated intent to balance the federal budget and in that law included a provision for a 98% tax on all individual or business income over $5000 per year, would it be appropriate for the Executive to lower that tax rate to 20% based on the conclusion that a 98% rate was unworkable? Would the Chief Justice use the same logic to uphold the Executive action.

[montanajoe]

To answer your hypothetical in a Robert’s court yes, in a Liberal Court such as the Warren Court no.

The CJ especially considering his dissent today has made it abundantly clear that the Court, in his view, must let the Congress decide the statutory issues that are its responsibility under the Constitution.

I followed his confirmation closely and an article I read recently reminded me of a comment he made to the effect that he viewed his role as CJ as that of an umpire..to call balls and strikes and not to influence the outcome of the game.

I have often thought that politics has devolved into the simple sports analogy. Many, if not most, whether it be the left or right mindlessly support the politicians they see as on their side.

Robert’s is a Conservative Chief Justice. That is entirely different from one having a conservative political philosophy.

In my view he understands that the only power the SC actually has is that of persuasion, arising out of respect for the institution and our constitution.

Today’s politicians are, by and large, dysfunctional egotists who have only their own personal agenda’s driving their endless quest for self aggrandizement and have little regard or concept of the reason why they have even been elected, they are just running for office same as they did in high school.

Their attacks on the CJ are made only to promote their political agenda and have nothing to do with the function of a sitting Judge.

A good umpire is going to be equally unpopular with either team’s fans but most importantly and good umpire like a good CJ is consistent. Like it or not Roberts has been consistent in his Judicial philosophy, something that most in the GOP have been unable to grasp. Unfortunately the American populace, that is, those who have even bothered to tune in, have becomes fans of an ideology rather than participants what was once called “The Great American Experiment.”