The King v. Burwell Aftermath


One of the core problems with a decision like the Supreme Court’s King v. Burwell ruling is that it does the opposite of what a Supreme Court presided over by justices-for-life is supposed to do.

As Chief Justice Roberts makes abundantly clear in his ruling, he looked at politics, not the law, concluding that upholding the clear text of the Affordable Care Act would have killed it, and inflicted chaos on a health insurance system already driven mad by ObamaCare.

He made a political judgment – with copious pressure from President Obama and his followers, and the weight of his own previous decision to put politics above the law to preserve the individual mandate – that the Affordable Care Act was a writ of nearly-unlimited power to do what its framers say they want to accomplish today, not a law with a balance of both power and responsibility based on what it said at the moment it was signed.

This is a very bad precedent to set, especially if Roberts’ reasoning is followed to the conclusion that the bigger and more ambiguously-written a law is, the more untrammeled executive power it grants.  No matter what ultimately becomes of ObamaCare, that will come back to haunt us in many other contexts in the future.

As for the political fallout from the decision, much of the punditry written beforehand assumed the federal subsidies would fall, and Republicans would either be muscled into passing a quick fix to restore them, or face a presidential campaign season filled with tinkly-piano ads about how mean old Republicans took away Mommy’s health care subsidies. It really is hard to escape the conclusion that this would have been the worst possible political outcome for the GOP – watching the marshmallow leadership fall all over themselves to get a clean subsidy fix passed before they jetted off for summer vacation would have driven the GOP base – and the millions of persuadable American voters suffering higher premiums, higher deductibles, worse access to providers, and paying taxes to subsidize other peoples’ plans – out of their minds.

I am of the opinion that tough political outcomes are a burden worth bearing to preserve the rule of law, but here we are instead: Democrats doing a creepy “ALL DEBATE IS NOW OVER!” victory dance to celebrate the Constitution-smashing preservation of a law the American people don’t like, whose passage has already blown them into a congressional minority, and which they own 100 percent. It would be easier to maintain optimism about Republicans fighting on such favorable political terrain if they had demonstrated an institutional talent for fighting winning battles on solid ground, and doing important things with the power thus obtained.

The American people are getting a raw deal out of ObamaCare, but the President was not wrong when he crowed today that the law is working the way he wanted it to. The American system has been bent and twisted beyond recognition by the agonizing pain of digesting a law that conflicts with such basic values as the freedom of religion, and even the freedom to decline engaging in commerce. The “consent of the governed” matters less than ever. The amount of money sucked down by ObamaCare and distributed to the government’s Little Partners in the insurance industry is staggering. A huge swath of the formerly independent middle class is now helplessly dependent on subsidy payments, whose termination can be threatened if they get any funny ideas about putting the Leviathan State on a diet.

The price Democrats paid for all that was the loss of seats in a national legislature they have marginalized, to the point President Obama simply dismissed the 2014 midterm elections by declaring he would exercise power on behalf of the people who didn’t vote. The Roberts decision renders the plain text of laws less meaningful than what the executive branch desires. If we end up with a Democrat president and one or both houses of Congress in Republican hands next time, the importance of Congress will be further diminished. It’s all been a bit rough on the individual Democrats who lost their seats over ObamaCare, but don’t worry – they parlayed their years of “service” into very comfortable fortunes and parasitic post-congressional careers, they’ll be just fine.

The GOP leadership doesn’t seem powerfully inclined to defend the prerogatives of Congress or uphold the rule of law. With law out of the picture, they had better understand how everything is about politics and power now. The gloves need to come off.

The Left will redouble its efforts to silence and marginalize Americans who are suffering under ObamaCare. Republicans should demolish that scam with vigor. Get those people out there to talk about their huge premium hikes, ridiculous deductible payments, and restricted doctor networks. Make sure they mention how good they had it before ObamaCare came along. Spotlight every state exchange failure, every insurance company collapse, every shuttered hospital, every study that shows how emergency rooms are being abused worse than ever. (That last bit is important, because for a lot of average voters, the argument that mandatory insurance coverage was the only way to control cost-shifting was one of the most sensible cases made in favor of ObamaCare.)

It will be a lot to hope for the GOP to consolidate behind a unified repeal proposal and ObamaCare alternative, especially during a presidential race when every candidate wants to tout their fix, but I’d say one the presidential candidate is determined, the rest of the GOP would be well advised to close ranks behind their preferred proposal. The American people really do respond to firm, clear promises, as the Republicans’ 2014 midterm sweep demonstrated. (Let us avoid contemplating what they’ve actually been doing with the congressional majorities they asked America for, except to understand it as an example of what should be avoided in 2017.)

A clear statement of ObamaCare’s problems, combined with a logical case for the alternative, is salable political product. Keeping those promises in 2017 would allow Republicans to make a devastating case that they can be trusted, in a way the Democrats who desperately need everyone to forget ObamaCare’s 2010 promises cannot.

The Left loves their Alinksy tactics, their Cloward-Piven attacks – creating chaos and then offering bigger government as the only solution, finding the weak points in private systems and ruthlessly attacking them. The Right can do the same thing. Exploit the weaknesses in ObamaCare without mercy. Throw the Roberts decision back in the Left’s face at every opportunity – we can write ambiguous laws and interpret them as we see fit, too! Play up the complaints, unrelentingly hold ObamaCare up to the standards set when it was passed – never let the Left-media convince you those “if you like your plan, you can keep your plan” clips are past their sell-by dates.

ObamaCare was always designed to fail, and usher in single-payer health care. The Left’s panic at stress moments when it looked like ObamaCare would collapse prematurely was very instructive. Don’t let this thing run its course, especially since the Roberts decision could be interpreted as allowing much of single-payer to be imposed by executive fiat without any new legislation passed. Why not? The “context” of the ACA was to give everyone health care, right? If this monstrous law implodes, why should any new legislation be necessary to nationalize health insurance completely, followed by medicine itself? There must be some more “ambiguous” language in there that could be stretched to the necessary dimensions.

Aggressively get Democrats on the record defending ObamaCare, and sneering at the people who don’t like it. It won’t be hard to do – there are few things more ugly and callous than a Democrat telling working people struggling with 150 percent premium hikes to get bent, because their sacrifice is necessary to give the Democrats’ preferred constituents a free lunch. It will be especially easy to squeeze such brutal sound bites out of Hillary Clinton – she once brushed off the economic chaos that would be caused by her own health care power grab by snarling that she’s not responsible for the collapse of “undercapitalized” businesses. This sort of thing is her weak spot. Hit it hard.

Most people get a queasy feeling when they hear the phrase “the ends justify the means.” They know that’s wrong, and they know those words have been cited to justify tyranny and evil. The Roberts decision is wholly based on that idea. The American system was founded on the opposite ideal: that the ends do not justify the means, the system should not be shredded to impose a “good idea” with haste, the rule of law is more important than any goal that could be achieved by discarding it.

A great deal of the Left’s moaning about “divisive” politics is a demand for conservatives and taxpaying Americans to roll over and play dead, offering no resistance to fierce liberal armies marching over them. ObamaCare was a declaration of war against the American middle class, and those trumpets are sounding louder than ever after the Roberts decision in King v. Burwell, which takes liberty and dignity away from individuals and gives it to politicians and bureaucrats,  because it says they must be given as much power as they need to accomplish their vaguely-defined ends, and that power has to come from somewhere. Greater power means less freedom, always.

A “law” that imposes no restraint or obligation on the government, not even the need to respect the plain text of the law itself, contains a payload of power that should be unacceptable to every patriotic American. Sometimes Republicans talk about the Constitution as an object of worship, an abstract idea they hold in reverence, without discussing its practical effect upon the real world. Well, Chief Justice Roberts just gave us a very powerful example of how the abandonment of Constitutional principle disrupts the everyday lives of ordinary people. Use it.

Make that case properly to voters, let them know just how much power the Supreme Court and Big Government are seizing, and put the rule of law on the ballot. And for the sake of the Republic, Republicans, don’t mumble or stammer when you do it.


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