Supreme Court Resigns Duties, Tortures English Language to Save Obamacare

Judicial restraint? More like judicial hysterical appeasement.


John Roberts
Public Domain

In his 1946 essay, Politics and the English Language, George Orwell observed that "the slovenliness of our language makes it easier for us to have foolish thoughts." Today is Orwell's birthday; it's also the day the Supreme Court released its 6-3 decision in King v. Burwell, which preserves the Affordable Care Act at the expense of plain English.

The majority, led by Chief Justice John Roberts, ruled that the provision of the law mandating an "Exchange established by the State" should be interpreted to include an Exchange not established by any state, but instead by an agency of the federal government, the U.S. Health and Human Services Department.

In his spot-on dissent, Associate Justice Antonin Scalia explains why this is an "impossible possibility":

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. …

Faced with overwhelming confirmation that "Exchange established by the State" means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible conclusion that Congress used "by the State" to mean "by the State or not by the State."

The majority opinion explains away this blatant contradiction by expressing confidence that architects of the law intended something other than what they wrote—the opposite of it, in fact. Intent should trump plain English—even when the two directly oppose each other—writes Roberts, because the Court's job is to defer to the will of lawmakers, and even contort logic to assist them, "if at all possible":

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—"to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt.

If only there was some branch of government designed to review legislative actions, thwarting the intentions of Congress if they conflict with the law… oh, wait, that branch does exist: it's the Supreme Court! The King v. Burwell decision is not merely the exercise of judicial restraint; this is judicial hysterical appeasement.

Supporters of Obamacare are excited about this outcome, as expected. The Huffington Post crooned, "Supreme Court Rejects Obamacare Lawsuit, Preserving Insurance for Millions." (Preserving insurance for some millions, no doubt, while depriving others of insurance—what about all the people who were kicked off their plans because of Obamacare-related complications?) Certainly, reasonable people can disagree about whether Obamacare is, on balance, a good law, and improves upon the dreadful state of the U.S. healthcare regime. But it's vexing to see so many liberals cheering the utter death of the Court's ability to rebuke lawmakers when they put forth nonsensical laws. Roberts' decision gives a lot more power to Congress, obligating the Court to ignore the plain text of laws "if at all possible."

Well, anything is possible. Is the preservation of limited government so universally unimportant—and the protection of Obamacare so paramount—that it was worth the utter subjugation of the Court (hereafter known as the Legislative Subcommittee on Wording Tweaks) to the will of Congress?

More from Reason on the King v. Burwell ruling here and here.

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  1. The main reason I’ve always felt the ACA was an illegitimate law is because of how it was passed. Al Franken stole the election from Norm Coleman in Minnesota when an army of Democrat lawyers tossed out votes for Coleman while activists found uncounted boxes of votes for Franken. That gave the Dems in Congress a filibuster-proof majority to ram this monstrosity up our asses. This type of legislation (or something similar) would never make it through the current Congress. That’s why Roberts ignored the law to make sure it stayed in place. He’s a total piece of shit…

  2. Again, fuck John Roberts.

    1. Insert obvious woodchipper reference here.


      For once, I can say that accurately. Thanks a lot, Chimpy McHitler.

  3. I had no idea it was Orwell’s birthday. It really is appropriate that this decision came out on this day.

  4. What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits?but your citizens still pay the taxes that support this bill.


  5. So does every federal law which now says only applies to “the States” also apply to the Feds?

    1. The ACA says “the State” not “the States.” It really helps if you actually read the law.

  6. When Gruber referred to the stupid americans needed to pass this law, clearly he included Roberts and his cohorts.

  7. “Supreme Court Rejects Obamacare Lawsuit, Preserving Insurance for Millions.”

    More like, trillions. 10s of trillions of dollars.

    What a shit show. It’s always been a shit show, but this is like the spray from a hippopotamus’ ass.

    1. Well put. And the majority of the Supreme Court tossed a head of lettuce at the hippo.

  8. Maybe they meant the State like when we say it. You know, including all levels of government in the name of the beast.

    1. Statists gonna state!

    2. You win the thread sir! we really need an upvote system.

  9. So, if intent trumps language, then isn’t it time to re-try the Massachusetts v EPA decision (Or was it an earlier EPA case) that said the EPA, through the clean air act, can regulate non-particulate matter like CO2, even though that was directly against the testimony and intent of the authors, Lorlings and Billings, of the act who said it was never intended to regulate CO2 and they never imagined it would.

    I think so.

    1. Jorling*, I accidentally butchered his name.

  10. It’s days like this that make me think twice about my commitment to consider possibly caring about anything anymore.

    1. Especially since in a couple years, when this law in its entirety has been thoroughly accepted by the masses as ‘the way of things’, criticizing any facet of it (other than for “not going far enough” of course) will be regarded as blasphemy.

      There was only a brief window during which to even amend the ACA to make it less of a fuck-up. I think that window is closing now. Another thing to learn to live with.

      1. ACA DENIERZZ!!!111!

  11. “Legislative Subcommittee on Wording Tweaks”

    Not bad.

  12. OK, so here’s how Roberts interprets the law:

    1. The whole point of the law is to provide stable insurance markets that can handle no limits on who can get insured, by mandating that everyone get insured, and avoid a “death spiral”.
    2. The law wanted to only subsidize state exchanges, to force encourage states to set up exchanges.
    3. Some states called their bluff and didn’t set up exchanges.
    4. This would cause their insurance markets to go through a death spiral.
    5. Therefore, we just pretend it doesn’t say 2 above, because then, the law has the effects which are consistent with 1 above.

    OK. Welcome to judicial ex post factoism.

  13. Oh stop yer whinin’ Robby. You know who you sound like? Progressives who complain that the SC is rewriting the Constitution when it comes to the 2nd Amendment. No they’re not. They are doing what they always do…interpret the Constitution. Don’t like the result? Win the next election. Forever has it been thus.

    But that’s right…2 judges who were put on the court by conservatives STILL disagreed with you. But hey, they must have done it for less than constitutional reasons, right? Another libertarian conspiracy theory hits the books.

    Stop crying. You lost.

    1. You lost.

      Yep. It’s a team sport, really.

      1. It is indeed, Brian. Team America.

        1. Jackand Ace|6.25.15 @ 3:27PM|#
          “It is indeed, Brian. Team America.”

          No, Jack, it’s shitstains like you against personal responsibility.
          Oh, and fuck off.

        2. And what was Jackand Ace’s contribution to this victory? As measured by what would have happened if Jackand Ace wasn’t there?

          Oh? Jack shit?

          Impressive victory. Bows.

          1. You will never know, Brian. But trust me…my effort was much more than yours and most here. I don’t just whine..and.name call…unlike you.

            1. You’re delusional.

              1. Just like I said.

                1. If you think calling people whiners and conspiracy theorists rises above ad hominems and achieves respectful discourse, you are delusional.

      2. It’s the only way joe can view the world: politics as sport.

        If he could be seen standing, over a crowd of children, he’d show up to congressional hearings, shirtless and painted with Dem Party warpaint. There he’d be, in the background, with his Jim Frafcant wig on, a giant ass painted on his chest, red, white and blue, WOOOOOOOOOOOOO!!!

    2. They weren’t ruling on the laws constitutionality.

      1. The first time they did. Same result. This time, a section of the laws constitionality. Same result.

        1. Jackand Ace|6.25.15 @ 3:29PM|#
          “The first time they did. Same result. This time, a section of the laws constitionality. Same result.”

          So now you’ve got to as lies to your stupidity?

          1. No, there wasn’t any constitutional question. The question was about the IRS interpretation of this part of the law. This actually is a loss for the government. If the court had ruled for the plaintiff the states would have had to establish their own exchanges in order for their citizens to get the subsidies! Ruling for the government took away the stick! Now the Feds have to continue running their exchange.

            1. Closer and closer to single payer and total control by the IRS and executive.


        2. So if someone lies consistently enough, their lies somehow become truth?

          Methinks you need a good lecture in epistemology. Or maybe you just need to not eat so many paint chips.

          “Stop crying. You lost.”
          I really get a laugh out the “might is right”/”we’re right because we won” type of arguments you and mtrueman spit out, only of course because you know people you like have the might right now. But winds change, they always do, and if someday you end up getting anally double penetrated by the state (metaphorically speaking of course) and fancy yourself a victim of the powers that be, just remember to tell yourself “stop crying, you lost.”

          1. You think I get everything I want out of government? It always goes my way? Ha! Don’t make me laugh. I just don’t whine about it like libertarians and you. You all are acting like children “it’s the end of democracy…time to move”. Give me a break.

            You need a lecture on how American democracy works. You know how I know Obamacare is constitutional? The Supreme Court says it is. That is how it works here. Don’t like it? Get off your butt, work for a candidate, and win an election. Or are you just like most libertarians here. Addicted to complaining about everyone else.

            1. Maybe you should read a history book Ace. We’re not a democracy, but a constitutional republic (nation of laws, FYI). When laws are interpreted anyway you want then it breaks down. Can’t wait till the shoes on the other foot.

              1. Please. Stop with the semantics. Maybe you should stay on point. How do we know in America a law is constitutional? Because libertarians say so, or the SC? Hmmmm?

                1. What its about is judicial activism. The court has told religions that they will decide not only what a true religion is, but also what tenets of those religions are sincerely held…and all, I guess, on a case by case basis. Oh, and I guess they will as well tell us which corporations and their employees get to decide which religious beliefs are protected. Because…who knows.

                  And Libertarians are happy.

                  I guess someone should have just replied and said:

                  Oh stop yer whinin’ Jackhand Ace. You know who you sound like? Conservatives who complain that the SC is rewriting the Constitution when it comes to gay marriage. No they’re not. They are doing what they always do…interpret the Constitution. Don’t like the result? Win the next election. Forever has it been thus.

                  Stop crying. You lost.

                    1. GLad you hang on my every word, Brian!

                    2. All I had to do was Google “jack hand ace” plus “Hobby Lobby” to hear you explaining a completely different interpretation of the Supreme Court and its validity than you are here.

                      I assume you just got butt hurt over Hobby Lobby and wanted to take a break from whining about judicial activism, so you could have a chance to go “SCOTUS says up yours, whiners!” on us.

                      Your not exactly above bullshit, much less whining.

                    3. I know exactly what effort you had to make. Trust me on this, unless you are responding directly to me, I ever read comments by Brian, no less expend an effort to google them.

                      But I think you should google that to check.

                    4. For consistency sake, perhaps you should google your own.

                    5. Nah, don’t need to…your obsessed with what I say.

                    6. Yeah, I googled “jackhand ace” plus “hobby lobby” because I’m obsessed, rather than just having a gut instinct that I could catch you stating the complete opposite of what you’re spouting here, over and over again.

                      If that makes you feel better.

                      And when I say you’re “delusional”, I’m just name calling.

                      You’re so above it all, Jackhand.

                    7. I feel great! Particularly today. But keep googling!

                    8. By the way, thanks for pointing out the hypocrisy of libertarians, and Peter, on judicial activism.

                    9. If hypocrisy bothers you, maybe you should look in the mirror first.

                    10. Ooh. Ok.

    3. The SCOTUS is infallible because it’s final, it’s not final because it’s infallible.

      1. This is true. You can still repeal. Of course, you will have to win an election, which means working for the candidate who will do that. It won’t be Hillary.

        But read all the comments here…everyone wants to give up. It’s just so much easier to whine and blame someone else.

        1. Uh, you have to control both Houses also.

          1. It’s even worse than that. Not only do you need the Senate, thanks to the recent history of the GOP, you need 60 senators, not just a sime majority. I’m sure Dems will act just like the GOP has for the past 6 years.

            And you will have more GOP senators defect than Dems.

            It ain’t EVER getting a simple repeal.

            1. but i guess the real question is why do you think the ACA is a good thing? i really dont see any merits of it since just allowing the insurance companies to compete across state lines would have had the intended effect of making insurance affordable where the ACA made even more narrow networks and made the “insurance” more expensive and it covers nothing so there is no health care to be had from it. Thoughts? I just really don’t see why you like this so much other than you being on the political team that currently supports it solely because they are getting kickbacks from insurers who stand to benefit financially from it.

    4. Come on, Jackand Ace. What part of “well-regulated” don’t you understand? The Second Amendment clear calls for regulation of guns!


  14. The English language has been DP’d by the Bar association so badly, it makes Linda Lovelace look like Mother Theresa. Yet again that is by design. Ebonics doesn’t even hold a candle to the pimping of the meanings of words by lawyers and judges as exampled by William Jefferson Clinton “It depends on what the definition of “is” is.”

    Words like citizen, and person don’t exactly mean what you think it means. In court they mean “corporate fiction”. – Blacks Law 4th Edition.

  15. I’m trying to avoid these commenting on the SCOTUScare threads because, well, everyone is trying to get a word in, but I can’t help myself at this point.

    The abuse of the English language and principles of logic in Chief Justice Roberts’s SCOTUScare opinions is just painful. In the mandate case, the penalty is simultaneously a tax and not a tax. It’s not a tax for purposes of the Tax Anti-Injunction Act, or the Court would lack jurisdiction, but it IS a tax and not a penalty. But it’s not a capitation or direct tax, because that would also be unconstitutional.

    Now, the phrase “established by the State under [whatever provision” is ambiguous and “established by the State or not established by the State” is a reasonable interpretation of that phrase.


  16. The Democrats made it quite clear at the time that they really meant to limit the subsidies to states with their own exchanges as an inducement to form their own. But Roberts and his 5 accomplices tossed that into a memory hole and chose to accept the lie that it was all an accident.

    1. But that screws the Feds. Now they have to run an exchange they didn’t want.

  17. “established by the state” could mean the state of the United States? duh.
    United State of individual states. The American English language is broken and has been since 1790 when Noah Webster wrote the Copy[rite] Act in order to make his own dictionary popular and authoritative while denying the human right to protect honor existing in England already since 1734 and after England made protection of honor the first individual right to pass to an artist to a spouse for life in 1766.

    1. It says “established by the State”, capital “S’. In law capitalization makes a difference.

    2. WOW, this subject really seems to bring out the crazies easily excited.

  18. The few fellows on the Court who believe in the rule of law should form a shadow court, and start writing full opinions for all cases, to establish the legal reasoning that *could* one day be used if the Rule of Law ever returns to the US.

    1. they only believe in their rule, there is no laws they follow its more of a Neutral evil entity now. Intelligent enough to make everything appear under the guise of law but not lawful enough to care to obey it, and works for the cause of furthering evil.

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  20. So you’ve never heard or read “the State” to refer to government generally. Really? C’mon.

    1. in Legalease “The state” refers to the government in general and “the State” refers to the individual state level governments. it was intended on being a stick to beat the States into providing an exchange by taxing all citizens for the exchanges whether they had one or not therefore giving the citizens of the individual states an incentive to elect state officials who would support state exchanges. Capitalization of words has its meanings.

    2. “State” is explicitly defined in the ACA to mean one of the 50 States or the District of Columbia.

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