Word definitions and reading comprehension apparently are not the strong suits of six justices of the U.S. Supreme Court. And Thursday’s much-anticipated decision on Obamacare subsidies seriously erodes the already damaged credibility of Chief Justice John Roberts.
In a 6-3 ruling, the high court, in true Orwellian fashion, found that the Affordable Care Act, better known as Obamacare, didn’t mean what it said and said what it didn’t mean.
The crux of the question in King v. Burwell was the phrase “established by the state.”
Obamacare, in that exceedingly plain language, said federal subsidies would be available to those enrolled in state-established health insurance exchanges. Even a sixth-grader would understand that to mean the several states, not “The State,” as in government at large.
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But when most of the states balked at establishing exchanges — risking Obamacare’s implosion — the Internal Revenue Service rewrote the law to allow federal subsidies for all. And Roberts bought into the “progressive” fiction that “established by the state” somehow is “ambiguous” and has been taken out of context by the plaintiffs.
Never mind that “the state” is used at least seven separate times in the statute — each time a clear reference to the several states. And never mind that Roberts exposed his own legal illogic by noting that the court must “take care not to undo what (the legislature) has done.”
In a flaming and most apropos dissent, Justice Antonin Scalia called the majority’s reading of the law “absurd” and “interpretive jiggery-pokery.”
“Words no longer have meaning if an exchange that is not established by a state is ‘established by the state,’” he wrote.
“We should start calling this law SCOTUScare,” Scalia chided the chief justice, incorporating the acronym for the Supreme Court of the United States, in a biting tutorial on the cascading effects of the court’s “insistence on making a choice that should be made by Congress” that “both aggrandizes judicial power and encourages congressional lassitude.”
Scalia, joined in dissent by Justices Samuel Alito and Clarence Thomas, reminded how Roberts also rewrote the Affordable Care Act in another majority opinion to uphold Obamacare’s individual mandate, calling it the constitutional “tax” that the Obama administration steadfastly argued it was not.
“The somersaults of statutory interpretation … will be cited by litigants endlessly, to the confusion of honest jurisprudence,” Scalia said.
The rule of law (not to mention the language arts) has taken a critical body blow in this case.
Far from “judicial activism,” this ruling, written by a legal contortionist, rises to legal malpractice. And in our grand republic, that’s as dangerous as it is shameful.