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Rule by the Robes

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Rule by the Robes

Scotus’ ObamaCare ruling on subsidies undermines both the rule of law and the meaning of words - again.

Calling to mind former President Clinton’s declaration that “it depends on what the meaning of ‘is’ is,”  our robed Lordly Masters on the Supreme Court have once again decided to do the heavy lifting for Leviathan, and in the process have further advanced the destruction of the rule of law and the simple meaning of words.

George Orwell is undoubtedly rolling in his grave.

In a 6-3 decision authored by His Eminence Lord Chief Justice John Roberts, and issued today, the Supreme Court again decided that the plain language of the Affordable Care Act, passed by Congress (through duplicitous and unethical means) and signed by the President, just isn’t adequate for the overall project of the federal government’s takeover of the nation’s healthcare system.

Perhaps Lord Roberts could spare everyone the time and effort of discerning what this horrifically-constructed legislation actually says and just re-write the whole bloody thing.

As he did three years ago in the Court’s ruling on the “individual mandate,” Lord Roberts decided that the language of the statute – and language used to “sell” the statute publicly – didn’t serve certain desired ends.  So, he just re-wrote the language.

In the current case, King vs. Burwell, the issue at hand was clear.  The legislation as written indicated that, under the Act, federal subsidies for qualifying citizens would be provided for health plans purchased in state-run exchanges “established by the state.” Doesn’t get much clearer than that.  Lord Roberts, however, has now decided otherwise.  From his decision:

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them," Roberts declared in the majority opinion.

Limiting the subsidies only to individuals in states with their own exchanges could well push insurance markets in the other states "into a death spiral," Roberts wrote.

So sayeth Lord Roberts, who might want to consider running for office given his determination to write – or, rather, re-write – legislation according to his desires.

Perhaps Lord Roberts could spare everyone the time and effort of discerning what this horrifically-constructed legislation actually says and just re-write the whole bloody thing.  That would be unseemly (and, of course, unconstitutional), but he’s gotten the taste of it now, so why bother litigating, or even writing things down?  If the written word in legislation isn’t sufficient for the aims he knows – simply knows – Congress aspires to, what’s the point of passing laws using written words?   

As ever, Justice Antonin Scalia, in his dissent, made clear the lawlessness and arrogance of the majority’s opinion:

This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it re-writes the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

The Court's decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people's decision to give Congress "[a]ll legislative Powers" enumerated in the Constitution.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases 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. I dissent.

As do I.



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Angus DuBois
Angus DuBois
Angus DuBois is the nom de plume of an entrepreneur of 20 years who, in cowardly fashion, prefers to keep his/her business identity a secret. Comments can be forwarded to angus@nexxuspublishing.com.

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