The Supreme Court case, King v Burwell, was essentially a question of whether the ObamaCare law would be interpreted as written, or as it was meant to be written, as best as the justices could divine the intent of Congress. The particular issue was whether the IRS could provide subsidies to those who needed them in states where they had their own health insurance exchanges, or in all states, even if they didn’t have an exchange.
What the law said was that the IRS would administer those subsidies through the exchanges “established by the states”. However, what the IRS did was to funnel them through state and federal exchanges, which is not what the law, y’know, actually said. They essentially reinterpreted the law to mean that exchanges not established by the states qualified as exchanges established by the states.
Some states said, no, that’s an unconstitutional reading of the law. There are other places in the law where it specifically refers to the states and the federal government combines, but it does not here. That is true. Here’s something else painfully true; this particular wording was exactly what was meant when the law was written.
How do we know this? Jonathan Gruber, the well-paid architect of the law itself, told us so. It was a classic carrot-and-stick approach. The carrot was billions in tax dollars. The stick was that if you didn’t set up a state exchange, you wouldn’t get any of it. There a link in the show notes to a video explaining all this and him saying, “I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”
This was not a case of trying to read a crystal ball and discover the intent. This was not trying to reach into the minds and writings of the founding fathers and trying to glean what they meant on some obscure constitutional point. You can’t search YouTube to find out what Washington and Jefferson were thinking, But Gruber is all over the Internet, on and off the record.
This was a game of chicken. Would the states blink first, and all setup exchanges, or would the feds blink and change the law. As it turned out, the fed’s blinked, but instead of changing the law, they just did what they wanted, and the IRS (which, last I checked, was not part of the legislative branch of the government) ruled that it would provide subsidies through the federal exchange as well.
And Chief Justice John Roberts and his cohort said, “Eh, seems legit.” OK, the ruling was a bit longer than that – 21 pages longer – but in the end that’s what they did. They claimed that if the subsidies were stopped it would ruin the implementation of ObamaCare, ignoring completely that that was the point all along.
Justice Scalia, writing in his typically entertaining dissent (which is basically the high point of this whole ruling), said that if an exchange not established by a state is actually an exchange established by a state, then words have no meaning. Truer words, that do have meaning, have never been spoken.
I don’t think those who are celebrating and praising this ruling have any idea at all what it could mean in the future for the power government has over us. And by “those who are celebrating”, I mean, generally, Democrats. The process, however fatally flawed and upside down it is, doesn’t matter as long as they get what they want. It’s always about politics.
From this point on, federal government agencies can now interpret the law any way they please. Really. Restrictions that were in place in the ObamaCare law were cheerfully ignored in furtherance of a political agenda, and the Supreme Court gave them 6 thumbs up. George Will, writing at the Washington Post, put it this way.
The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.
Theprocess has been butchered by this ruling. Sure, ObamaCare proponents got what they wanted, but at a price to their own power as a people that I’m sure they are blissfully unaware of. The political process of a government restrained by law, influenced by the people, which has been slowly eroding anyway, just did a nose dive.
You say lobbyists have too much power? I’d agree, because they just had to go to one place – Congress – to spend their dollars budgeted for graft. Now, they can bypass the middleman and go straight to the IRS or any other federal agency and bribe an unelected bureaucrat. And that bureaucrat doesn’t have a campaign coffer he or she needs to keep funded, so it’ll be cheaper for the lobbyist. It’s a win-win! But remember, you don’t figure into either of those two wins.
Some folks, when I bring this up, claim I’m just mad because my side lost. Well, I don’t deny that I don’t like the outcome of the ruling, but even beyond that, and looming larger, is the power grab I see in DC. Unfortunately, all I get in dissent is, “Blah blah blah. Too bad. You lost. I don’t care.” Yes, literally, those words.