King v. Burwell

On Obamacare It's the Supreme Court vs. Rule of Law

On King v. Burwell

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Here is John Roberts, chief oracle of the United States of America, from Thursday's King v. Burwell decision:

"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."

What the statement illustrates is that for Roberts, the law is a subordinate concern.

I know, I know, the Affordable Care Act is moral and decent and that's all that matters. Liberals demand we govern through empathy-based jurisprudence rather than anything resembling the antiquated tenants of founding principles. If you care about the latter more than you do the former, the fact that Supreme Court justices are aping the consequentialist arguments of the left and then working backward to make their legal justifications is probably the worst sign for checks and balances yet.

We're going to be inundated with legal interpretations over the next few days. But imagine for a moment if a Supreme Court justice argued that the Defense of Marriage Act was passed to improve marriage rather than destroy it so we must focus on the former rather than the latter and uphold any retroactive provisions the Bush administration cooked up to make that law work. Or imagine the same for any legislation you disagree with.

Let's concede to Roberts that the intention of every politician is to improve on things. Republicans believe that further nationalizing health insurance is a bad idea and makes markets less competitive and more expensive. By overturning the law, they want to improve health insurance markets, as well. That's why we have legislatures, to debate these points of view and then pass bills. That legislation codifies what a majority can agree on. And we have courts to judge the constitutionality of laws, not to bore into the souls of politicians to decipher their true intent or find justifications to rubber-stamp "democracy"—as Roberts puts it.

But in every case, it seems, we must respect the role of the legislature and not undo what it has done. A fair reading of the legislation demands a fair reading of the legislative plan.

It was Roberts who helped rewrite Obamacare the first time around, making a penalty into a tax and, for the first time in history, allowing American government to coerce every citizen into buying a product from a private company as part of its power to regulate commerce.

Roberts, abandoning law, laments that Obamacare was drafted in a haphazard and vague way, right before ruling that laws can be implemented in any way the executive branch sees fit, as long as judges deem its intentions righteous.

Once we pass massive pieces of legislation that effectively hand entire industries to regulatory agencies, we are allowing the executive branch to govern in any way it sees fit. That said, it's doubtful that SCOTUS would allow the same rationalizations used for King v. Burwell to be employed for any legislation it found distasteful. Though Republican presidents keep nominating judges who disappoint conservatives, you can be assured that Hillary Clinton would not disappoint liberals with her picks.

But on the political side, this ruling means we can no longer rely on government institutions to check one another or themselves. Conservatives—or whatever party is in the minority—have to continue to be the check. Any kind of reform should be opposed because any kind of reform, no matter how narrow the focus theoretically is, will be an opportunity for boundless revision and scope. All a political party needs to do is cobble together a temporary majority, push through legislation that expands federal power and then find some clairvoyant judges dedicated to empathy rather than their oath. All of this is fine, according to the Supreme Court, as long as politicians had good intentions.

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  1. Wow. This article must be what live slam-poetry feels like.

    1. Neither conservatives or liberals have any respect for the rule of law. They all make it up as they go along. Same for government employee jerks , and those personal injury a**hole lawyers!

  2. Roberts reminds me of Warren Burger. Only more dangerous.

    1. All so called law and order judges are dangerous. Because they see themselves as a rubber stamp for the executive branch of government.

  3. They’ll give you a crazy stare when you want real care. You say you have cancer and are blinded by their evil glare. They say you’re too old, so don’t you dare, we have to save our medicine for the politicians and her mare. For these top men and women are more important whether single or a pair. So to save you the hassle when you loose all your hair, we’ll at least give you this complimentary bottle of Nair.

    1. I DON’T NEED NAIR? AFTER I’VE LOST ALL MY HAIR!!!

    2. A bear there was – a bear! A bear! All black and brown and covered with hair!

      1. But you were so mad because it broke your chair, shit in your garden and ruffled your fine combed hair.

        You yelled out with a blare, don’t you give me that hungry stare, for eat me if you want because I don’t care!!

  4. Who care about Rule of Law? Gay Marriage more than makes up for it!

    1. ^ What progressives like Tony actually believe.

  5. What Winston said. Our robed overlords gave you ungrateful bastards gay marriage didn’t they? And that is the most important civil rights issue of the age? Right? Judging by the amount of attention Reason pays to it, it must be.

    Sometimes the master givith and sometimes he takes it away. To the Progs you people sound just like the conservatives acting butt hurt over gay marriage. And you know what? The progs are right. You people are all about rule by judge when it is giving you your pony. Well, sometimes the judge has to take it away just to show you he is still the boss.

    1. Cmon John. Surely the oligarchy of TOP MEN will give us more freedom in the long run than some system devised by dead white men s hundred years ago.

      1. Give us freedom? We had freedom to begin with. What would be nice is if the Top Men would stop taking it away.

    2. “Liberals demand we govern through empathy-based jurisprudence rather than anything resembling the antiquated tenants of founding principles. If you care about the latter more than you do the former, the fact that Supreme Court justices are aping the consequentialist arguments of the left and then working backward to make their legal justifications is probably the worst sign for checks and balances yet.”

      Wickard and Korematsu are worse by far in terms of scope. The ACA decision is a sleazy justification for expanding the welfare state, but wartime courts routinely roll over on the most fundamental and evident liberties when the executive applies the cattle prod.

      The rest is absolutely correct, esp the bit about DOMA. The past couple of days reveals what anyone with a half hour of legal education already knew, namely that the Supreme Court is and always has been filled with political appointees friendly to statist goals rather than impartialish jurists given to a sense of duty.

      1. Wrong box, wasn’t intended as a reply.

    3. It’s just that some Libertarians are not above a little social signaling either, and right now nothing signals more open-minded tolerance then supporting the gays, no matter what you sacrifice to do it.

      1. Ass sex and blow man, and you get your L card.

        1. I see it the other way around.

          You have to care about other people’s ass sex more than your own taxes in order to be a Republican.

          1. Strange, I think the definition applies to libertarians today.

            1. I’ve cared more about my taxes than other people’s gay sex–all my life.

              Nothing changed today–except the Republicans are, hopefully, down one distraction.

              And that distraction was a loser by the way. There isn’t anybody that’s going to vote Democrat today becasue gay marriage is legal, but there are a lot of people who might vote Republican now because they care about spending and taxes–and gay marriage isn’t really at issue anymore.

              1. Right. Because the media won’t give Huckabee a huge stage to scare voters into voting for Hill.

                Then again, in the UK, the total squish Tory party actually cut spending.

                1. I’m not British, but isn’t that a miracle along the lines of Moses and the Red Sea?
                  😉

              2. Ken

                Dems still scare folks into thinking one more Rep elected official may result in Roe v. Wade being overturned (which of course wouldn’t make abortion illegal) and I think it gets them votes. They will do the same here: one more SoCon elected official will overturn this case (which they would allude to taking away legal ass sex in the vein of lies that abortion would be illegal).

                Though socon leaning states do actually make abortion more difficult to access than non-socon states.

    4. John,

      Obsessing over what other people do with their wieners–to the exclusion of issues like taxes and spending–is silly. That’s why the Republicans have been the silly party for so long.

      This is a chance for the Republicans to recast their core message as something that isn’t silly at all.

      I’ll tell you this. Before the Republicans are ever to have an impact on social issues again? They’re gonna gave to regain their credibility on core issues like taxes and spending first, and they can’t do that with stuff like their position on gay marriage making them look so silly.

      When soccer moms in California have given the Democrats a permanent majority, there, because they’d rather vote with blacks, Hispanics, the poor, and gays–than vote for the silly party? It’s time to change.

      Long term, this is probably the best thing that could have happened to the Republican Party.

      1. Who cares Ken? This isn’t about the Republicans. This is about the rule of law and whether legislatures or courts get to decide how we are governed.

        I don’t give a flying fuck what gay marriage means to Republicans or how popular or unpopular it is. I care about the rule of law and the Constitution.

        1. My point is that the reason so few people care about the rule of law and the Constitution is because they’re distracted by issues like gay marriage.

          And that’s on both sides of that issue.

          1. There are always more flags and new pronouns, Ken. I agree with you that the heart of our problems stem from taxes and the spending state. That’s the jewel that both sides are really fighting over. But you’re deluding yourself if you think this will be the last culture battle. There will always be another because the Left cannot lose the initiative as long as they’re winning.

            1. This has been a major distraction for a very long time.

          2. I hope your theory is correct.

            I’m just skeptical.

            Look at how the IRS scandal has unfolded. No one even cares.

            We just learned that the IRS was erasing back-up tapes in March 2014!!!

            “by mistake” of course.

            The VA is worse than ever.

            No one cares. Not enough emotion, signalling, or cute memes there.

            1. How focused are people on gay marriage?

              The IRS is erasing backup tapes?

              LOOK, A SQUIRREL!

        2. “To secure the blessings of liberty” John.

          You stopping individuals of the same sex from marrying violates their liberty.

          1. Them receiving entitlements violates my liberty.

            1. Anyone receiving entitlements or subsidies violates anothers liberty.

              1. Them using the state to force their beliefs on others using force violates everyone’s liberty.

  6. What bothers me the most about Roberts is that his last two decisions are hypocritical of each other.

    In the ACA ruling he literally rewrote the law in order to fix Congress mistake. In the gay marriage ruling he opted to remain an originalist and claimed the Constitution did not grant said rights.

    How does this guy decide who he is each day? Flip a coin?

    1. He is a fuckin’ windsock. He doesn’t decide anything.

    2. There does seem to be one constant in the two rulings. Roberts is basically pursuing good intention-based justice as he sees it; it’s not impartial and he’s using any jargon at his disposal to see through with what he basically thinks is a just outcome at the sacrifice of his oaths (probably because most people won’t recognize the hypocrisy of his reasoning or the judicial lawmaking he’s doing). But think about the ends because they don’t seem hypocritical to me — pushing through the ACA and gay marriage — it’s progressive justice to his eyes.

      Is it right? IDK. I’m glad that gays are being extended the freedom that their countryman enjoy. Free Americans enjoying the same rights as other free Americans is principle I agree with. I recognize that people here are griping about the complete destruction of the rule of law but this single issue isn’t the death nail, it’s all the issues together that are illegally reforming law to the will of whatever corrupt politician or judge or whomever has the ability to act.

      1. “There does seem to be one constant in the two rulings. Roberts is basically pursuing good intention-based justice as he sees it”

        Yeah, he thinks he’s standing up for the will of the people in both cases.

        Incidentally, though, has the ACA ever been popular? It wasn’t popular when it was passed, and it remained unpopular for years afterwards…

        I agree that Roberts thinks he’s standing up for the will of the people–but I suspect he thinks he’s doing it for the people of tomorrow. I’m not sure he cares whether it’s popular today. I suspect he’s trying to mold us into what he think the will of the people should be tomorrow.

        1. More like standing up for the will of the Democratic Congress not the will of the people

      2. I’m glad that gays are being extended the freedom that their countryman enjoy.

        You mean the freedom to ask the State for permission or license to marry? Yeah buddy – that’s a hell of a win for individual liberty.

    3. “How does this guy decide who he is each day? Flip a coin?”

      He seems to have caught the Progressive turn of mind, where what the truth is whatever is most convenient for your preferences.

  7. All of this is fine, according to the Supreme Court, as long as politicians had good intentions.

    Perceived intentions, via reliance on emotions over logic, are the central tenant of the progressive worldview.

    1. “Perceived intentions, via reliance on emotions over logic, are the central tenant of the progressive worldview.”

      Power and what achieves it is the central tenet.

      Any “arguments” in support of their power are simply ad hoc rationalizations. The only meaning they ascribe to their arguments are the power to manipulate.

      1. Any adherence to the rule of law left the building decades ago. Might as well pack the Constitution up and hide it in some dusty government warehouse next to the Arc. “Top Men” like Roberts have everything under control.

        This is what progressivism means – a slow steady progression to socialism. It has just picked up speed since Bill Clinton entered office – that is when the socialist radicals gained power in most of our institutions.

      2. Any adherence to the rule of law left the building decades ago. Might as well pack the Constitution up and hide it in some dusty government warehouse next to the Arc. “Top Men” like Roberts have everything under control.

        This is what progressivism means – a slow steady progression to socialism. It has just picked up speed since Bill Clinton entered office – that is when the socialist radicals gained power in most of our institutions.

  8. “What the statement illustrates, writes David Harsanyi, is that for Roberts, the law is a subordinate concern.”

    The only check on government that matters is the willingness of the American people to be shit on.

    Unfortunately, we’re living in an era when the willingness of the American people to be shit on is monumental.

    1. What happened to the “gay marriage means that libertarians can do anything”?

      1. It’s the same deal.

        If we can convince enough people, we can do anything.

        Just don’t expect the government to protect our rights any better than what the American people want.

        Those are the exceptions rather than the rule.

        This is not a libertarian government. This is not a government that’s legitimate purpose is to protect our rights.

        If we want one of those, we’re going to have to convince a critical mass of the American people to want a libertarian government, too.

        Yeah, if gay can convince the American people over a course of decades to protect their rights, there’s no libertarian issue we can’t persuade the American people to support, too.

        But we ain’t there yet. Right now we have an American people who want the government that can 1) force them to eat broccoli and 2) hit them with taxation without representation.

        We’ve got some work to do.

        1. But in this case they got a court decision that upheld tax relief.

          1. Tax relief for whom?

            Expanding medicaid isn’t about to mean tax relief for me!

            Hell, they’re spending my money and what Congress actually voted on the bill doesn’t matter?

            Far as I’m concerned, that might as well be taxation without representation.

            Don’t tread on me.

            1. This decision wasn’t about Medicaid, it was about the income tax status of health insurance. It won’t cut everyone’s taxes, but it will some’s.

              1. What are you talking about?

                They’re upholding the intent of a “law” that Congress never voted on.

                The law that Congress voted said the exact opposite of what they’re upholding.

                Congress voting on taxing and spending is central to the idea of Democracy.

                They’re giving subsidies to people–using my tax money–that Congress never voted to give away. They’re financing these subsides through deficit spending with my future earnings as collateral.

                That’s taxation without representation.

                It’s basic.

        2. We’ve got some work to do

          Understatement of the millennium.

          1. I propose a million woodchipper march.

  9. I must be a rarity: someone who was actually persuaded by a Sup. Ct. opinion. In this case it was the majority’s.

  10. imagine for a moment if a Supreme Court justice argued that the Defense of Marriage Act was passed to improve marriage rather than destroy it so we must focus on the former rather than the latter and uphold any retroactive provisions the Bush administration cooked up to make that law work. Or imagine the same for any legislation you disagree with.

    It makes a difference. In the case of DOMA it was a matter of whether its provisions were superseded by anything in the US Const. In the case of Burwell it was a matter of what certain provisions of the PPACA meant. 2 different types of questions, so don’t conflate them.

    The purpose of a legal document usually has nothing to do with whether it’s allowed by some other, controlling document (such as statute vs. constitution). However, the purpose of a legal document has everything to do w what its provisions mean.

    1. Also, you don’t do justice (heh) to Roberts by giving his reading of statute as that it’s to merely “improve on things”. Sure, the opinion started out very general like that (excess writing to me), but he got more particular than that when it came to its purposes. The question was what the exchanges provided for by the PPACA were for.

      I don’t know how many of you realize that it’s not uncommon for judges, even ALJs, to read legal provisions in some way other than their literal meaning. If, for instance, you were to look at the definitions of “drug” and medical “device” in federal & state law, you’d have to conclude that a broad range of things, from musical instruments to candle scents, were one or the other, and that clothes were “cosmetics”. Fortunately those definitions are not taken literally, because it is not thought to have been the intention of legislators to cover such items.

    2. “However, the purpose of a legal document has everything to do w what its provisions mean.”

      Where there is Rule of Law.

      Where there is not Rule of Law, the purpose of a legal document is usually just a kabuki dance to cover the will to power of our rulers.

      I think it’s pretty clear where we are.

  11. Roberts, abandoning law, laments that Obamacare was drafted in a haphazard and vague way, right before ruling that laws can be implemented in any way the executive branch sees fit, as long as judges deem its intentions righteous.

    No, he didn’t say that either! Did you RTFA? He explicitly denied that IRS would be allowed to determine the meaning of the parts in question, and said it required a judicial decision.

  12. Statutory law has been such a success story.

    1. Ass sex and blow, man.

      1. Why are you trying to blow and have ass sex with everyone?

        F.S…….If you allow ass sexery then I can’t drink your blood.

        It’ll be weird, but we can still hang out. Don’t want you all sad and stuff.

        1. Flashing your card?

  13. But he DIDN’T defer to Congress in the decision because the intent of Congress was to coerce the States into setting up their own exchanges! In fact he screwed them as now the states that did set up exchanges will probably close them and let the feds take care of it. The question is how much is that going to cost the feds and will it lead to the implementation of single payer?

    1. If I was a politician of a state that had spent millions setting up an unnecessary exchange I would be super pissed off right now.

      1. Nah, they got donations from the IT companies.

    2. See, I never understood why even have state exchanges unless they were some kind of bribe/coercion. If the feds were going to take over healthcare insurance regulation, then why not have a single website, a single regulator, and the states can close down their health insurance commissions?

      I suspect they wanted to keep those commissioners sweet on the deal.

      1. Why not? That’s the question. The Reps should be destroying the Dems over the money wasted by the feds on the state exchanges. Why were they pushing state exchanges if they were going to offer the same thing at the Federal level? Does this mean every insurance company is going to be competing on a national level?

  14. Ah, the Supremes, I liked their song – Stop in the Name of Love.

  15. Judge Roberts would have loved defending concentration camps as an extension of the intent of the Nuremburg Laws.

  16. I’m so sick of the stupidity of the Boobs in Black. Going back at least as far as Wickard v. Filburn, they’ve made crucial critical errors that have nearly destroyed America.

    Wickard v. Filburn 317 U.S. 111 (1942)
    Everything is “Interstate Commerce” – so congress can control everything!

    Wisconsin v. Mitchell, 508 U.S. 47 (1993)
    You can be punished for your thoughts.

    Citizens United v. Federal Election 558 U.S. 310 (2010)
    Corporations are People too!

    Salinas v. Texas 133 S.Ct. 2174 (2013)
    No, you don’t have a right to remain silent

    Bennis v. Michigan 517 U.S. 1163
    Yes, we can steal your stuff – and no, it doesn’t matter that you’re not guilty of anything.

    National Federation of Independent Business v. Sebelius, 132 S.Ct 2566 (2012)
    “Taxes must originate in the House of Representatives… except for this one.”

    King v. Burwell
    “Law? What law? We can make the law mean anything we want!”

    And those are just a few…

    1. Agreed – among many other completely haphazard decisions. A first year law student has a better understanding of the constitution than these clowns in robes.

      The SCOTUS might as well drop all pretense of actually using the constitution to render decisions – King v Burwell leaves the constitution irrelevant and subservient to the relative value of the legislation as interpreted by congress not whether the letter of the law should be followed.

    2. Citizens United does not belong in your laundry list of bad decisions. It is disingenuous to claim they were literally saying that a corporation is a person; corporations are owned and comprised of persons, who do not lose their rights when they incorporate.

    3. We libertarians were conned too on King v Burwell. Roberts’s decision was based, in part, on Scalia’s written opinion in 2012. Then, when Scalia wanted the mandates struck down, he stated there would be no damage to the subsidies, as Congress intended.

      There are FOUR sections of the Obamacare law, not just the one on “state” exchanges.
      The most relevant says the “Secretary” will establish and run exchanges for any states who decline. And that those exchanges would implement all requirements of the law.
      We’re getting fed hysteria now, just like the Dems and Reps.

      I guess tribal libertarians may not give a hoot. But this libertarian does not want to be manipulated by anyone.

    4. Schenck v. United States (1919)
      When the Constitution prohibits something in an unqualified manner, we can ignore it due to extenuating circumstances like war!

      KENTUCKY v. KING (2011)
      “‘searches and seizures inside a home without a warrant are presumptively unreasonable,'” this presumption may be overcome when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment,”

      So, let me get this straight: a warrantless search is unreasonable… unless there’s an “exigent circumstance” that somehow makes it reasonable? And this is evidenced by when this warrentless search becomes reasonable under the very law which requires the warrant? — IOW, the proof of its reasonableness is that denying that a warrentless search is unreasonable imposes some difficulty. — and this is Alito, supposedly one of the ‘conservative’^1 justices.

      ^1 — Well, if you take “conservative” to mean keeping things the same, sure.

  17. Perhaps it is time to stop pretending that the actions of government have anything at all to do with the common people and that common people have any ability to have a say in how they are being governed- at least at the Federal level.

    The federal government is completely out of control and has become a totally autonomous entity accountable to no one.

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  19. Libertarians, like conservatives. have suffered very biased reporting. How many know that Roberts’ decision on Obamacare exchanges was based (in part) on a written opinion by Scalia!

    To defend making the subsidies available to consumers everywhere, Roberts cited a line the dissent to the 2012 decision in favor of Obamacare, in which Scalia said, “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”
    http://talkingpointsmemo.com/d…..gainst-him

    In other words, Scalia the blowhard switched principles (he wanted the mandate struck down, and claimed there would be no damage) . And this on the “clear words” of the law”

    “A neighboring section says that if a state does not act, “the Secretary shall ? establish and operate such Exchange within the State and the Secretary shall take such other actions as are necessary to implement such other requirements.

    http://www.usnews.com/debate-c…..-king-case

    Hmm, might “such other requirements” include the subsidies?

    1. You keep posting that same thing over and over.
      Those words? I don’t think they mean what you think they mean.

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  21. Roberts attempts to view the law through the lens of the politicians who wrote it, yet doesn’t seem to understand that the reason for the series of coincidental typos was to get the law passed in the first place. This is where you come in, John. You were not appointed for your command of insurance economics. Yes, if the law meant what it said, it would have an impact on the artificial insurance industry. But no, if the law said what it meant it would have never passed in the first place!! If you’re going to be a politician be a fucking politician!!

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