Here’s a really excellent piece by Yuval Levin on today’s ruling, and its consequences for the rule of law.
In the majority ruling, Chief Justice Roberts justified his renunciation of textualism thus:
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.
This is an enthymeme, however — a chain of reasoning with a hidden and implicit premise. In this case the missing premise is that to interpret the statute as Mr Roberts wishes it to be, in contrast to the clear text of the law as written, will in fact improve health-insurance markets. But opponents of the Affordable Care Act, on the other hand, disagree with this: they believe that the law, as modified by the Court (or, for that matter, unmodified), will harm, not improve, health-insurance markets.
Resolving such debates, and writing laws that embody their resolution, is the role of legislatures, as the elected (and thereby accountable, at least in principle) representatives of the people — not the Court. This decision, therefore, is an audacious usurpation, by the judiciary, of the Constitutional authority of Congress.
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Well if the president isn’t grabbing Congressional powers it is now a handful of black robed lawyers. I have seen more than one civil war and they are always a slow rolling series of affronts on several fronts until events get out of hand. Free people are always amazed at how these things happen in “their country”.
Funny, I don’t recall you complaining about an “audacious usurpation, by the judiciary, of the Constitutional authority of Congress” when the Supreme Court struck down a campaign finance law to provide corporations with free speech rights (and to posit that writing a check is tantamount to speech), or when it negated a duly passed law to create, ex nihilo, the putative religious freedom rights of corporations.
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Yesterday’s decision was not a usurpation of Congressional authority. Quite the opposite: it was a model of judicial restraint. It recognized both the intent of Congress and the text of the law, which is as follows:
Title I of the law is “Quality, Affordable Health Care for All Americans.” Not those Americans living in states with health exchanges.
Section 1321 states that if a state does not establish its own exchange under Section 1311 of the law, the Secretary of HHS shall establish and operate “such exchange.”
Section 36B(a) expressly provides that the premium tax credits shall be allowed to any “applicable taxpayer,” who is defined as “a taxpayer whose annual household income is between 100% and 400% of the federal poverty level.”
In addition to the text of the law clearly stating that subsidies are universally available to qualified persons, it is abundantly clear from the historical record that Congress intended them to be available regardless of whether a federal or state exchange is used.
The plaintiffs argue that the clear text of the law should be ignored, and instead rely on four words as the sole and exclusive determination of who gets subsidies. These words are in a sub-sub-subsection of the bill which deals with how to compute subsidies — not who gets them — and are the functional equivalent of a typo. Nobody even noticed them until two years after the law was passed, when ideologues seeking to find an excuse for activist judges to “usurp the Constitutional authority of Congress” and have them void Congressional intent and language based on a drafting error.
In other words: in order to accept the plaintiff’s case, you have to ignore the many parts of the law which make it clear that subsidies are available to any taxpayer within 100-400% of the poverty level; accept in its place four words in a sub-sub-subsection which had nothing to do with who gets subsidies; and believe that those who wrote the law deliberately put a poison pill in the bill, didn’t tell anyone about it, and all lied about it afterwards. Moreover, you would have to ignore the case law regarding statutory interpretation, where ambiguities and contradictions within the law are resolved within the context of the entire law. Simply put, the plaintiffs had no case. It is a political argument dressed up in legal fiction.
The post-game excuse making is as preposterous as the pre-game hype. The Court upheld the rule of law by preserving the intent and substance of ACA, and did not overturn Congressional authority by using the pretext of a tendentious and convoluted misreading of the law. It is judicial restraint, not judicial activism.
After a disinformation campaign and dilatory Parliamentary moves to try to kill the bill before it could be passed, over fifty House votes to repeal the law, an unsuccessful attempt to replace President Obama in 2012, a government shutdown, and two failed lawsuits, the long battle is now over. Obamacare is here to stay, as the companion to Medicaid and Medicare in providing decent health care to Americans who need it. However, there will be other battles to fight. Perhaps the conservatives who seized on the bright, shiny object of a four word drafting error can use the same logic to argue that the Moops invaded Spain:
https://www.youtube.com/watch?v=Ia02fGpUQfU
The text says “Established by the State”. Secretary Burwell is not a State. The text was in fact revised to its present form, indicating that its present wording was not any sort of oversight. Indeed, there was a clear motivation for making it be what it is: to encourage States to set up their own exchanges (as Jonathan Gruber explained on many occasions).
The text was clear. To describe as “tendentious and convoluted” reading such a brief and lucid passage to mean what it plainly says merely reveals the sad depths of your partisanship and zealotry.
The ruling was a calamitous miscarriage of the rule of law. It was also, as described above, a blatant usurpation of Congress’s legislative power.
As for your remarks about Citizens United, I have explained my position elsewhere. But yes, writing a check is speech when an association of persons publishes a book, or produces a movie — just as it is when the New York Times writes a check to one of its columnists. The case was not (despite the Left’s attempt to make it so), about “granting rights” to corporations, or making corporations “persons”, but about limiting the terrifying power of the State to censor political expression. The Court rightly ruled that it is always best to err on the side of liberty in matters of speech. (I should have thought you’d approve of that.) There is no reason for free Americans to fear — and certainly not to censor and suppress — political expression, no matter what its source may be.
You can prattle on all you like about both of these rulings (though at this point I’d rather you did so elsewhere, as I am weary of having these useless arguments about them) — but you are, in my opinion, completely, and dangerously, wrong.
Oh, sorry, Malcolm. I should have realized that you’re having a bad week. I can imagine how the continual repudiation of right wing orthodoxy, and its inability to find adherents outside the remarkable opacity of its echo chamber, must be very difficult for you. Accordingly, I’ll cease my prattle forthwith.
I’m comforted by the fact that the vast majority of my fellow freedom-loving, right-thinking Americans — as well as the vast majority of appellate and Supreme Court judges who ruled on the cases — find this prattle to be quite sensible. But hey: don’t mind us. You can now return to your regularly scheduled program.
Piss off, Peter.
It isn’t me having a “bad week”; I’ll be just fine. It’s the future of this nation, as a constitutional republic, of a free people, under a limited central government with carefully circumscribed and enumerated powers, that’s having a very bad week indeed.
What you call “right-wing orthodoxy” is nothing more than what the Framers called “separation of powers”. And in this case, it could more simply be called “reading”.
Moreover, your “vast majority” is just another bucketful of your wearisome bullshit. In survey after survey, large majorities of Americans disapprove of the abominable law that John Roberts just propped up. (Again.)
It’s the future of this nation, as a constitutional republic, of a free people, under a limited central government with carefully circumscribed and enumerated powers, that’s having a very bad week indeed.
It is safe to say that ship has sailed. What next, cultural cleansing of anything left of post=reconstruction south?