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Jul 05 2015

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John Roberts Dishonors the Supreme Court

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Roberts diminishes the Court...

Roberts diminishes the Court…

Oh for the days of “balls and strikes.”

The relaxed confidence of John Roberts at his confirmation hearings in 2005 was a soothing balm for a nation enmeshed in a growing partisan polarization. Speaking in reassuring tones to his Senate inquisitors, Roberts professed no agenda, ascribing his philosophy  as a potential Chief Justice to that of America’s favorite pass time.

Judges are like umpires,” Roberts said. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”  At the time, Roberts seemed almost Reaganesque, a sunny, optimistic conservative who could communicate judicial restraint in terms that any American could understand.

But a decade on, it is those who put faith in Roberts’ pledge that have been betrayed, most recently in Roberts’ unconscionable legal position on the latest Obamacare case to reach the Supremes, King v. Burwell. Indeed, looking at the King case, Roberts has not only diminished his Court with an utterly contrived and insidiously political decision, but, through his contortions, Roberts has also created a dangerous precedent that destabilizes the very concept of separation of powers.

King v. Burwell is summarized in the meaning of six words, “an Exchange established by the State.” Specifically, Section 36B of the Affordable Care Act (ACA), stated that health insurance subsidies are limited to “an Exchange established by the State.” Critically to the reasoning on this case, the ACA specifically creates the authority for the federal government to establish an Exchange in the absence of a State exchange. The implication is clear; state exchanges are a unique construct of the law, separate from federal exchanges.

Moreover, it was  a very purposeful policy decision to include this distinction. No less an authority than the infamous Jonathan Gruber, architect” of Obamacare, lays out the logic: 

“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,” Gruber said. “So you’re essentially saying to your citizens, ‘You’re going to pay all the taxes to help all the other states in the country.’ I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges and that they’ll do it, but once again, the politics can get ugly around this…”

And indeed, the politics did get ugly.  Astonishing Obama’s social engineers, 34 states – through their elected representatives –  chose not to take the bribe and establish an Exchange, forcing the federal government to step in. However, when it came to extending subsidies to states without State Exchanges, the IRS – on behalf of the Administration writ large – decided to ignore the law and extend the subsidies anyway.  What had been designed as a “carrot and stick” approach to compel states to buy-in to Obamacare, thus became a constitutional issue and ultimately King v. Burwell.

Since SCOTUS took on King v. Burwell, the laws defenders, being too cute by half, have argued that in a bill as large as the ACA, it was inevitable that there would be isolated sections that, on the surface, might not fit exactly with the larger purposes and goals of the law. Exorcising inconvenient facts established in the congressional debate over Obamacare,  the defenders ask why Congress would go to the trouble to create a law expanding health insurance access, particularly to the uninsured poor, and then specifically block citizens from receiving subsidies based solely on the type of Exchange available to them.

Ignoring the legislative history of the law, John Roberts and five other Justices agreed.  Said Roberts for the majority:

If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain the Court must read the words “in their context and with a view to their place in the overall statutory scheme.” 

“When read in context, the phrase “an Exchange established by the State” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits.”

Roberts and the majority willfully created an ambiguity, which then afforded the Court the rationale to defend the subsidies on previous judicial interpretations of regulatory discretion. Of course, no such ambiguity existed in this case. And by so doing, Roberts and the majority preserved the insurance subsidies in 34 states and, for all intents and purposes, saved Obamacare until 2017.

The harm from Roberts’ flim-flam comes in two parts.

By basing his decision on an invented legal premise, to the exclusion of existing facts of law, Roberts diminishes the integrity of his Court and weakens the impression of an impartial judiciary. Tellingly, Roberts has now saved Obamacare twice on convoluted legal reasoning that was never presented by the Solicitor General – the lawyer for the government charged with defending Obamacare. It is hard to see Roberts’ decision as anything other than political in nature; very damaging to the Court.

Aside from the debate on Obamacare, this decision also creates a truly dangerous precedent.  Aggrandizing presidents of the future, much in the mold of President Obama, can aggressively exploit or ignore the law, claiming ambiguity, whether it exists or not.  At that point, it will be the bias of SCOTUS that decides, most likely on a political, not legal basis, a blow both to the separation of powers and the very integrity of the rule of law.

It light of Roberts’ reasoning in the King case, it is eye-opening to re-read the Chief Justice’s opinion from the original Obamacare case in 2012:

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders….Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.” (emphasis added).

Ah, but in this case, the Court did effectively make a policy judgment, and a political one at that.

For all his work in weakening the branch of government he heads, in the interest of President Obama’s singular legislative accomplishment, Obamacare deserves to be re-branded as “Robertscare.”

 

 

 

 

 

 

 

 

 

 

 

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