What A Disgrace – Farewell to the Rule of Law: Supreme Court Upholds ObamaCare Subsidies

By JOHN HAYWARD – The rule of law was formally put out to pasture by the Supreme Court on Thursday, as we discovered that the plain text of a law matters less than what the party in power thinks it should mean. On a 6-3 vote in the King v. Burwell case, with Chief Justice John Roberts and Anthony Kennedy joining the liberal bloc vote of Ginsburg, Breyer, Sotomayor, and Kagan, the Court decided to allow the federal ObamaCare exchanges to continue distributing taxpayer subsidies for health insurance, even though the Affordable Care Act explicitly reserves those subsidies for state exchanges, and there is ample evidence the authors of ObamaCare knew what they were doing when they inserted that language into the law. They simply changed their minds later, when the political ground shifted. Most states didn’t set up exchanges, several those which did abandoned them, and cutting off the ObamaCare subsidies could have scuttled the entire scheme. Much of the punditry on both Left and Right leading up to the decision assumed the Court would nix the federal subsidies, sticking congressional Republicans with the outrageous burden of saving a law none of them voted for. (Let’s be honest: after watching the new Republican majority in action, it’s highly likely that they would have done so, with minimal political pain for the Democrats.) If the Internet is running a bit slow today, it’s probably because ten thousand “What the GOP Must Do to Save ObamaCare Now” articles are being deleted. Justice Antonin Scalia, in dissent, growled that ObamaCare should be called “SCOTUSCare” now, because the Supreme Court has rewritten it twice to keep it alive. It should go without saying that this is not how the American system of government was supposed to work. The majority decision actually does make it clear this is a pure exercise of political power. Chief Justice John Roberts writes, after reviewing the debate over what the “exchange established by the state” language means: The upshot of all this is that the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.

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