On Thursday, the Supreme Court released its long-awaited decision on Obamacare’s IRS subsidies under federal health insurance exchanges. And, as expected, the Court rewrote the statute to help President Obama’s signature law.
With each passing day of Supreme Court decisions, conservative principles begin to feel more and more like the survivors of the Scream films: it’s only a matter of time before you are next for the knife.
In King v. Burwell, four citizens sued over Obamacare, alleging that they had been forced to purchase health insurance; they said that the federal health exchange set up in Virigina in absence of a state-created health exchange under Obamacare did not count as a “state exchange” for purposes of the statute, making it illegal for them to receive federal subsidies for their health insurance. Without the subsidies, they would no longer be required to purchase health insurance, since it would be too expensive.
Now, Obamacare’s language is quite clear: it states that only those who buy insurance via state-run health exchanges may receive federal subsidies. This provision was purposefully designed to incentivize states to set up their own exchanges, in order that politicians could take credit for making health insurance more widely available with the help of the federal government. When states turned down the opportunity to set up such exchanges, the scheme collapsed. Or at least it would have, had not President Obama’s IRS casually rewritten the law, and provided federal health insurance subsidies via the federal health exchanges in violation of both the letter and spirit of the law.
But no matter: the law is whatever President Obama says it is, not those funny little words written down on those reams of paper nobody read before voting. Chief Justice Roberts, who has turned out to be yet another in a line of historically disastrous Republican Supreme Court picks (join your place in the pantheon, Justice Roberts, alongside Sandra Day O’Connor, David Souter, Anthony Kennedy, John Paul Stevens, and Earl Warren, for starters), saved Obamacare the first time by magically transforming a mandate to buy healthcare into a tax. Now he, along with Kennedy, have saved Obamacare a second time by rewriting it a second time. It must be convenient to be the President of the United States when you have a cheerleading Supreme Court on your hands willing to act as a superlegislature to clean up all the political mistakes you make.
The vote in favor of rewriting Obamacare to save it went 6-3. Purposeful textual misinterpretation isn’t even controversial at the Court at this point.
Roberts’ decision, like his original Affordable Care Act decision, is a masterpiece of subterfuge and purposeful misinterpretation. He begins with a long, glowing history of Obamacare, talking about all the prior failed government attempts at “health insurance reform.” He then states:
The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful.
So Roberts is a fan. Why does that make the system legal? It doesn’t, unless you’ve got on your Obamacare rally cap. Fortunately, Roberts does. After citing the explicit provision of the law mandating that subsidies are available only under “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act,” he proceeds to reinterpret the language itself. He states that “This is not a case for the IRS.” Instead, it is a case for Mighty Mouse! — or rather, as you guessed, the Supreme Court. “If the statutory language is plain,” writes Roberts, “we must enforce it according to its terms.” But the language must be interpreted in “context.”
With those words, conservative hearts everywhere sank, as we know that “context” is code for “whatever the hell we want the statute to say.” (Context does not include statements like those of Obamacare’s mastermind, Jonathan Gruber, who explicitly said that the state/federal exchange scheme was a key portion of the bill.) After all, the Court found three years ago that “context” dictated ignoring all political and historical context for Obamacare’s unconstitutional mandate. And so it was. Roberts utilized the following logic, direct from the insane asylum:
[W]e must determine whether a Federal Ex- change is “established by the State” for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines “State” to mean “each of the 50 States and the District of Columbia”—a definition that does not include the Federal Government. 42 U. S. C. §18024(d). But when read in context, “with a view to [its] place in the overall statutory scheme,” the meaning of the phrase “established by the State” is not so clear.
Then, for page after dreadful page, Roberts and the Court majority torture the statute, declaring that if it floats, state exchanges will be deemed federal exchanges, and if it sinks, federal exchanges will be declared state exchanges.
Finally, the Court simply throws up its hands, calls the problem “inartful drafting,” and mandates that 70 million Americans purchase health insurance: “without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer… The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral….It is implausible that Congress meant the Act to operate in this manner.” The Court doesn’t like a result, so like James T. Kirk with the Kobayashi Maru problem, they simply change the programming. As Roberts concludes, “Petitioners’ arguments about the plain meaning of Section 36B are strong.” But no matter: the Court is stronger than any text.
Justice Scalia’s dissent, as always, is withering:
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…. Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.
Scalia sums up: “Under all the normal rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation always seem to yield to the overriding principle of the present Court: The Affordable Care Act must be saved… We should start calling this law SCOTUScare.”
Conservatives constantly say that if one more member of the Supreme Court were to be appointed by a Democrat, the balance of power in America would radically shift. That appears to be an exaggeration. Republican presidents have been quite capable of undermining the Constitutional order with their own appointments. And those appointments have done their damndest to destroy whatever is left of that order.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.