Over the years, quite a few people have asked me why I generally don’t write about or comment on new Supreme Court decisions very often. There’s actually a very good reason for that. You see, I write about and teach the Constitution. Unfortunately, Supreme Court decisions rarely have anything at all to do with what the Constitution actually says.
So you’ll have to forgive me for not going out of my way to read through endless pages of tortured logic that are completely unrelated to the topic I’m passionate about. This week’s King v. Burwell decision is a perfect example of that; the actions that the Court took in order to save Obamacare from itself are found nowhere in the Constitution.
[sharequote align="center"]The actions that the Court took to save Obamacare are found nowhere in the Constitution.[/sharequote]
It’s time to talk about Article 1, Section 7. That works out perfectly for discussing King v. Burwell because Article 1, Section 7 is the part of the Constitution that gives us the process for creating laws in this country.
At this point, it’s important to point out that there is one—and only one—Constitutional method for creating or changing laws in this country and it’s the one we find in Article 1, Section 7. It’s also the method that you probably learned about in school or by watching School House Rocks. Here’s how it goes:
- A bill must be passed by both the House of Representatives and the Senate.
- Once a bill has passed both houses of Congress, the president can either sign it into law or veto it and send it back to Congress.
- If the bill is vetoed, Congress can over-ride the president’s veto and enact it into law with a 2/3 vote.
If you look carefully at that process you might notice something important: The Supreme Court isn’t mentioned anywhere. That tells us that the Supreme Court has absolutely no role to play in creating or amending our laws. None. Zero. Zip.
Affordable Care Act supporters hold up signs outside the Supreme Court as they wait for the court's decision on Obamacare on Thursday, June 25, 2015. (Photo By Bill Clark/CQ Roll Call)
The justices simply have the power to judge laws as they were enacted.
With that in mind, let’s look at what happened in King v. Burwell.
- The statute in this case was extremely and unmistakably clear. It says subsidies for Obamacare are only available through an “Exchange established by the State.”
- One of the architects of this law, Jon Gruber, has made it very obvious that this phrase was intended to mean exactly what it says.
- Gruber has also emphasized that it was designed this way deliberately in hopes that it would pressure states to create their own exchanges.
In other words, this law was intentionally designed so that anyone who signed up for Obamacare through the exchange created by the federal government wouldn’t be eligible for a subsidy.
Much to Gruber’s surprise, most of the states didn’t cave to federal bullying and refused to create their own exchanges. Because of that, over 6 million people who enrolled in Obamacare signed up through the federal exchange and shouldn’t be eligible for subsidies. If those people ended up having to pay the full price, it would have created havoc in the insurance market.
But because applying this law as it was written would have some unpleasant consequences, the Supreme Court decided that this law does not mean what it clearly says—and what Congress intended it to mean. Instead, six of the nine justices on the Supreme Court have taken it upon themselves to re-write Obamacare in order to make its effects slightly less disastrous.
It’s funny, I’ve re-read Article 1, Section 7 several times today and I still can’t find the part where SCOTUS is granted the power to re-write laws that were poorly written.
[sharequote align="center"]It isn’t the Court’s job to save Congress from itself.[/sharequote]
That’s because it isn’t the Court’s job to save Congress from itself. If our politicians pass a boneheaded law that will have terrible effects on this country, it’s not the Court’s job to clean up the mess. It is the role of Congress to figure out how to fix their own mess or face the consequences at the ballot box.
Antonin Scalia has rightly come out and blasted the majority for this decision, saying that we should now call it SCOTUScare. I tend to disagree with him on that. It would be more accurate to call this program Tyranny-care - because every aspect of how this law has been passed, implemented, and upheld has been stained with tyranny.
Take a look at a very limited list of examples:
- Thanks to our friend Gruber, we know with certainty that Congress lied to the American people about what was in this bill because they knew it wouldn’t pass if we knew what was in it. We also know that it was deliberately written using tortured language for the purpose of deceiving us.
- After this law was enacted, President Barack Obama has consistently and unilaterally changed several of the deadlines, the qualifications, and other aspects of this program. If you look through Article 1, Section 7 again, you’ll see that he doesn’t have the authority to do that.
- The Supreme Court has decided to anoint itself as some sort of glorified super-legislature and re-written this law twice in order to save it.
All of that should be terrifying because it shows that our government no longer serves the people of this country. Our federal government now imposes what it wants on the American people whether we like it or not.
The way Obamacare has been handled - from beginning to end - proves beyond any doubt that the people who now run our government won’t allow the law, the Constitution, or anything else that gets in their way to stop them from getting what they want. Is that the kind of country you want to live in? The type of country where our politicians have no limit on their power but their own imaginations?
You might think I’m only upset about this decision because it cements Obamacare more or less permanently into American life. But that’s not the case. Let’s be honest, even if the court had ruled properly and put Congress into a position where it had to consider amending Obamacare, you know that the Republicans would have screwed up that opportunity anyway. So in that sense the impact of this ruling isn’t all that dramatic.
I’m upset about this decision because it shows just how irrelevant the Constitution and the rule of law have become in this country.
Even if you are someone who loves Obamacare, you should still hate this decision. The process of how you enact a policy is every bit as important as what policy is enacted. And the way Obamacare has been manipulated demonstrates that our politicians are no longer restrained by the Constitution in any way.
By now you might be asking, “If what the Supreme Court did is so bad, then what’s the solution?” I wish I had that answer for you. In a sane world, this type of blatant disregard for the Constitution and violation of the oath of office by our judges would easily be grounds for impeachment.
But as you know we don’t live in a sane world. We live in a world where the same Chief Justice who told us in his confirmation hearing his job was to simply calls balls and strikes has now decided to grab a bat and hit a few home runs.
Chad Kent is an author and speaker with a unique style that makes the Constitution simple and fun. Listen to Chad every Saturday during The Chris Salcedo Show on TheBlaze Radio, visit his web site at www.ChadKentSpeaks.com, and like his Facebook page at www.facebook.com/theconstitutionguy.
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