Politics & Policy

King v. Burwell: An Embarrassing Decision

The Supreme Court rewrites the Obamacare law instead of letting Congress do its job.

With his opinion in King v. Burwell, Chief Justice John Roberts has sent a clear message to Barack Obama, Harry Reid, and Nancy Pelosi: “You can count on me.” Or, to use the language of younger readers, “I got your back.” In the face of clear statutory language indicating that federal subsidies are available only for insurance plans purchased through “an Exchange established by the State,”  Justice Roberts — and five other justices — rewrote the law to enable tax credits for insurance purchased through federal exchanges as well.

MORE COVERAGE: King v. Burwell and Obamacare

In so doing, the justices not only saved the individual mandate, they essentially saved Obamacare. Had they ruled the other way, Americans living in the 34 states without a state exchange could no longer have purchased subsidized insurance on the individual market. As a result, the cost of the insurance would have grown to the point where consumers would no longer be required to purchase it. Under Obamacare, the individual mandate does not apply if the cost of insurance exceeds 8 percent of the taxpayer’s income.

This result would have been catastrophic for Obamacare — gutting a key provision — but whether it would have been catastrophic, meaningless, or even potentially beneficial for individual Americans would have been entirely up to the elected branches of government. After all, a Supreme Court decision applying the clear language of the statute wouldn’t have mandated any particular congressional or presidential reaction. Congress would have been free to reform Obamacare, rewrite it to include federal exchanges in the subsidy scheme, or enact entirely new policies.

The Supreme Court, however, decided not to take any chances on democracy, so — in an opinion long on insurance-economics analysis and short on statutory or constitutional reasoning — it effectively changed the statute. Why? Because of the entirely speculative real-world effects. Here’s Justice Roberts:

Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid.

Yet this is pure conjecture on Justice Roberts’s part. He does not, in fact, know whether insurance markets would be destabilized because he does not know the congressional response to a contrary ruling. He distrusts Congress, so he’s going to “fix” their mess.

#related#He made this distrust manifest earlier in the opinion when he took a swipe at the drafters, noting that Obamacare “contains more than a few examples of inartful drafting” and that “Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’” But despite (or because of?) this mess, the Court felt the need to preserve the Obamacare they wanted to see, not the Obamacare Congress drafted and the president signed.

The end result is rule by bureaucracy, with the backing of the courts. Recall that the genesis of this case was the IRS’s unilateral act of writing regulations that contradicted the statutory language by extending tax credits to insurance purchased on federal exchanges. The bureaucrats defied the democratic process, only to see their defiance validated by the highest court in the land.

While this may be progressivism, it is not democracy, and it is certainly not the government as outlined in the Constitution. Justice Scalia, writing in dissent, understood this well:

The Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.” Lamie, supra, at 542. In the meantime, this Court “has no roving license . . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.”

Given the Supreme Court’s role in preserving, protecting, and — where necessary — rewriting Obamacare, Justice Scalia proposes renaming it “SCOTUScare.” But the Supreme Court is but one part of an increasingly unified federal technocracy. The Court’s decision is distressing but predictable. After all, when it comes to progressive reform, they’re all in it together.

MORE COVERAGE: King v. Burwell and Obamacare

— David French is an attorney and a staff writer at National Review.


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