The U.S. Supreme Court has become the handmaiden of big government.
The court’s ruling last Thursday in King v. Burwell saving Obamacare is an acknowledgement that some government programs are too big to fail, too enormous for the justices to apply their constitutional duty of protecting the integrity of our political system.
Chief Justice John Roberts’ opinion in the 6-3 decision came in what was probably the last significant legal challenge to the Affordable Care Act.
Roberts wrote that a ruling against Obamacare would “destabilize the individual insurance market in any state with a federal exchange” and likely create “death spirals” for the insurance market.
In other words, Congress can write a law that bestows federal largesse on so many people — in this case more than 6 million Americans getting subsidies to buy insurance — and so entangles a major industry — the insurers whose business could face chaos under an adverse court decision — that the court has no choice but to find some way to make the law pass muster.
As in the ruling three years ago saving the health insurance scheme for the first time, Robert had to employ legalistic gymnastics to rewrite the law. As written, the act allows subsidies to low income Americans to buy insurance through “an exchange established by the state.” Thirty-four states, reflecting what polls show is more voter opposition than support for the law, rejected exchanges and the federal government had to establish them.
The high court majority said that the law providing for the federal government to create exchanges where states refused to do so somehow made those exchanges “established by the state.” As Justice Antonin Scalia noted in a withering dissent, that interpretation was “quite absurd” and “interpretive jiggery-pokery.”
Roberts further argued that his reading of the language reflected the intent of Congress — well, Democrats in Congress in 2010 since the law didn’t get one Republican vote — to provide insurance to all Americans, and the tax credit subsidiaries were necessary to do that.
But intent didn’t matter in 2012 in the Roberts ruling first rescuing the law. The act called the cost imposed on Americans who didn’t buy insurance a “penalty.” President Barack Obama repeatedly described it as such and vigorously rejected any contention that it was a tax.
But penalty implied that Congress could force someone to buy a product, which was too much for the court to accept. So, in the fertile imagination of Roberts, intent didn’t matter. The penalty could be construed as a tax, which Congress clearly could impose under the Constitution.
In his latest ruling, Roberts all but acknowledged that the law was pretty much a mess. He talked of “more than a few examples of inartful drafting,” of key parts written by Democrats “behind closed doors,” and of Democrats using “a complicated budgetary procedure” to pass it, all of which “limited opportunities for debate and amendment.”
“As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation,” he said. Such was the debased state of American representative government under Democrat rule in 2010.
So, in Roberts’ view, it was “the court’s task to determine the correct reading” of the law. He further said that “in every case we must respect the role of the Legislature, and take care not to undone what it has done.” That sounds like the court’s job is to find a way to save whatever law Congress passes.
Under such a doctrine, how many other huge programs — now or in the future — of the byzantine federal regulatory state affect so many people, entangle so many businesses, exert such influence over an entire industry, that they are immune to legal challenge, are too big to fail?
Such a view seems to me an abdication of the court’s role in our system of checks and balances, to be a diminishment of the court’s status.
That’s not to say that the justices won’t continue to exercise their duty to protect individual rights in many instances. But how will the high court weigh and value individual liberty when it clashes with a government program deemed too big to fail?