My column for the West Bend Daily News is online. Here it is:
The Supreme Court issued a series of bad rulings last week that indicate this court has lurched from being an austere arbiter of the law to a highly partisan legislative body. Unfortunately for the American people, it is a legislative body that consists of members appointed for life and not accountable to the people. In no case did the Supreme Court belittle itself more than in the case of King v. Burwell — the case about the Obamacare subsidies.
This was a case that was about the plain reading of the English language. The Obamacare law gave each state the ability to create a health care exchange, but if a state chose not to do so, the federal government would create one. The Obamacare law also clearly states in several places that the federal government would provide a means-tested subsidy for participants in the state Obamacare exchanges, but only for participants in the state exchanges. The law specifically excludes giving a subsidy to participants in the federal exchange.
The purpose for the law’s language on subsidies was obvious and clearly stated by advocates of the law in the press and in official Congressional debates. The advocates of Obamacare wanted the states to create the Obamacare exchanges so that the states, and not the federal government, would bear the brunt of the cost of Obamacare. In this way, Obamacare could be sold to the public without having to disclose its actual, and enormous, cost to the taxpayers. The subsidies were used as a political cudgel to incent the states to create Obamacare exchanges under the calculation that no state would dare to turn down “free” subsidies to their citizens.
The law did not play out the way the Obamacare advocates planned. Many states, including Wisconsin, wisely saw through the game they were playing and refused to create a state exchange. This left President Barack Obama a political disaster with the prospect of millions of Americans being forced into the federal Obamacare exchange without a subsidy. So, Obama and team did what they have always done: They ignored their own law and issued subsidies to participants in the federal exchange anyway.
This is what King v. Burwell was about. Does Obamacare say what it actually says — that the subsidies only apply to participants in the state exchanges and not those in the federal exchange? The Supreme Court ignored the plain language of the law, the context in which it was written and the purposeful intent for why it was written. Instead, the court ruled that the law means whatever Obama and team want it to mean. The Supreme Court has officially sanctioned arbitrary rule.
Chief Justice John Roberts admits as much in the majority opinion. He writes, “If the statutory language is plain, we 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.” Brown & Williamson, 529 U.S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.”
In other words, it does not matter to Roberts what the actual words mean. He and his fellow legislators in black robes will give the words whatever definitions they choose irrespective of the clear meaning of words in the English language.
As usually happens, Justice Antonin Scalia perfectly eviscerates the majority’s bad decision in his dissent. He says, “… the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.”
As do I.
Owen Robinson is a West Bend resident. Reach him at email@example.com