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.
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.
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.
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.
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.”
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