SCOTUS Chief Justice, John Roberts, did it again this week. He proved my point (again) when I posted here last April the fact that The Law is Not What it Says. That’s right. He just wrote the 6-3 majority opinion in King v. Burwell, (the ObamaCare case) confirming that the law is not what it says -- it’s what he says.
This makes it twice now – two times in a row – Justice Roberts has confirmed that, when it comes to the ObamaCare law, that law is not what it says – it’s what he says.
The first time around, Roberts decided that what Congress had intended and expressly stated in the law was a “penalty” wasn’t a penalty – it was a “tax.” Now he’s decided that what Congress intended and expressly stated that only policy holders in a state created insurance exchange may qualify to receive federal premium subsidies, means that policy holders in federally created insurance exchanges can qualify for subsidies too.
Let me see if I understand Justice Roberts correctly:
The text of the ObamaCare law passed by Congress stated plainly and unequivocally that individuals and businesses that refused to buy the insurance coverage would be subjected to a financial “penalty” every year. The proponents of the law maintained consistently during the congressional debates that it would be a “penalty” – not a “tax.” That’s because the proponents knew full well that the law would never be passed if it contained a new tax. So the plain intent of Congress then was that this would be a “penalty.”
When the issue found its way to SCOTUS the lawyers on both sides of the case insisted again and again that the law created a “penalty” – not a “tax.” That’s what they argued in their court briefs. That’s what they maintained consistently during oral arguments before the Court. Indeed, that’s what the law plainly provided. Everyone knew that.
The problem for the proponents of ObamaCare was that, if the Court were to agree with them that Congress intended, and the law plainly provided, that it was a “penalty” and not a “tax,” then the Court would have been obliged to strike down the law as unconstitutional because the government may not force individuals to buy something by penalizing them for failure to do so. On the other hand Congress does have constitutional powers to tax individuals as a means to finance laws and other regulatory schemes.
Justice Roberts and the four other left leaning justices on the Court, fully cognizant of these facts, simply disregarded the plain text of the ObamaCare law; the plainly expressed intent of the Congress; as well as the positions of counsel. They just wanted to uphold the constitutionality of ObamaCare no matter what so they decided that the “penalty” was not really a penalty but a tax. That’s the only reason why ObamaCare is the law of the land today. The law is not what it says – it’s what SCOTUS says it says.
Now, Justice Roberts, the four lefties, and Justice Kennedy have ignored once again what the law says because they just don’t want ObamaCare to come unraveled. Knowing full well the congressional history of the law and the clearly expressed intent of its drafters that policy holders in federally created insurances exchanges would not be eligible for premium subsidies, (Congress wanted a strong incentive for all the states to create their own exchanges); they simply disregarded the facts and the plain text of the law.
When Congress said “state exchanges,” they meant federal exchanges too, despite their intent to the contrary, held the 6-3 majority...
Because the law is not what Congress intended; the law is not what it says: (again!)