Quote of the Day:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. . . .
–Justice Antonin Scalia's scathing dissent in King v. Burwell
Chief Justice John Roberts wrote the majority opinion for the disappointing Supreme Court decision that subsidies ostensibly created for state ObamaCare exchanges are legal even if given not through state exchanges but by the IRS to states that have no exchanges. The Wall Street Journal notes that this is the second time in three years that the Chief Justice has rewritten ObamaCare to save it. His opinion contains considerable verbal gymnastics. As the Wall Street Journal further notes:
Chief Justice Roberts concedes that the challengers’ arguments “about the plain meaning” of the law “are strong.” But then he writes that Congress in its 2010 haste bypassed “the traditional legislative process” and thus “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.” So because ObamaCare is a bad law, the Court must interpret it differently from other laws.
More to the political point, the Chief argues that withdrawing the subsidies would undermine larger ObamaCare goals such as giving “certain people tax credits to make insurance more affordable” and could lead to bad policy consequences like higher costs. “It is implausible that Congress meant the Act to operate in this manner,” he writes.
Even Solicitor General Donald Verrilli didn’t try to convince the Justices to rule in favor of the good intentions of “reforming” one-sixth of the economy. Instead he stressed statutory ambiguity and asked the Court to defer to the IRS. But Chief Justice Roberts goes beyond this and simply substitutes his own version of what he thinks Congress intended. This means that not even a new President with a new IRS could rewrite the subsidy rule because this rule is now what Chief Justice Roberts says it is.
As Justice Antonin Scalia observes in his coruscating dissent, “We [the Court] lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.” (See more Scalia nearby.) The framers made the judiciary the least accountable branch and vested all legislative power in Congress to protect the accountability necessary for durable self-government.
Justice Scalia quips acidly that “we should start calling this law SCOTUScare,” but the better term is RobertsCare. By volunteering as Nancy Pelosi’s copy editor, he is making her infamous line about passing the law to find out what’s in it even more true than she knew at the time.
Senator John Barrasso, who is a physician, writes in the Wall Street Journal that the Court has temporarily saved a bad law. Barrasso points out that Republicans have good alternatives to the expensive and unpopular law that the Supreme Court has saved. If Republicans win the White House and hold onto the Senate, then the law faces yet another test. The most serious damage from yesterday's ruling was not to ObamaCare but to the Court. As George Will writes this morning:
The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.
Justice Scalia did not cite Lewis Carroll in his dissent but maybe he should have. Carroll creation, Humpty Dumpty, summed up what the opinion written by the Chief Justice means:
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
This Supreme Court decision is truly through the looking glass.