My New Editorial in USA Today – “Obamacare Is No Longer Just A Law.”

June 25th, 2015

The USA Today has published my editorial on King v. Burwell. My proposed title, “Obamacare Is No Longer Just A Law,” sums up my thinking well.

Praising the Affordable Care Act, President Obamasaid recently, “Five years in, what we are talking about … is no longer just a law.” Chief Justice John Roberts agrees.

The Supreme Court’s decision in King v. Burwell on Thursday did not simply hold that the phrase “established by the state” means “established by anyone.”

Rather, it signaled that the text of the 900-page law is now subordinate to what the court sees as its unimpeachable purpose: “to improve health insurance markets, not to destroy them,” regardless of the costs. If at all possible, “we must interpret the Act in a way that is consistent with the former, and avoids the latter,” the chief justice wrote. Alas, with that goal in mind, it is always “possible” to save Obamacare from itself.

In the court’s 2012 decision in NFIB v. Sebelius, the chief justice recognized that the law’s individual mandate requiring people to buy health insurance was unconstitutional. But this couldn’t be right, because allowing the uninsured to free ride on taxpayers would not “improve health insurance markets.” So, through a “saving construction,” the chief justice rewrote the mandate as a “tax” and upheld the law.

In King v. Burwell, the chief justice found that the “plain meaning” of the text — that “state” means “state” — was a “strong” argument. But this couldn’t be right, because limiting subsidies to state exchanges would not “improve health insurance markets.” So, once again, the chief justice rewrote the law, this time to provide subsidies everywhere.

After two Supreme Court decisions and countless executive orders, the Affordable Care Act is indeed no longer “just a law.” It has morphed into a judicial-executive chimera, bearing less and less resemblance to the bill Congress enacted.

Chiseled into the marble ensconcing the Supreme Court is the phrase: “Equal justice under law.” In King v. Burwell, this bedrock principle was abandoned. As Justice Antonin Scalia laments in his dissent, the normal rule of law now yields to the “overriding principle of the present Court: The Affordable Care Act must be saved.”

I was limited to 350 words, which were due at 4:00 E.T., so it was tight. I will expand on this topic in due time.