ObamaCare is the law of the land, now and forever. Well, at least until the country goes broke and the entitlement state falters.
The Supreme Court’s second upholding of President Obama’s health care law was as comical as it was predictable. Conservatives fumed over Chief Justice John Roberts’ dereliction of duty. Liberals basked in the victory, with the president proclaiming, “The Affordable Care Act still stands, it is working, and it is here to stay.”
And stay it will. The left already knows it. King vs. Burwell marks a huge victory in the march for progress. Many on the right are still unwilling to accept the loss, and can’t wrap their heads around the fact that the highest court in the land just effectively changed a law’s wording, thus legislating from the bench, instead of judging the law as it was. Such a maneuver represents a complete abandonment of the American conception of rule of law. For those who believe law should be strict and straight-forward, this was a devastating blow.
GOP master strategist and ovate talking head Karl Rove called the Court’s decision “an act of judicial activism.” National Review’s Quin Hillyer pilloried Judge Roberts as a “results-oriented judge” and a “disgrace.” Ben Shapiro summed up the acrimony by declaring over Twitter, “Words don’t mean anything. Laws don’t mean anything. The law is, apparently, whatever Obama says it is.”
Now, what Shapiro meant is that Chief Justice Roberts, along with the Court’s four liberal justices and wildcard Anthony Kennedy, essentially rewrote plain language in the text of ObamaCare. The entire case was based on the fact that ObamaCare, as written, does not allow for the federal government to provide tax dollar-funded subsidies to health care exchanges established by the federal government. The Affordable Care Act was supposed to entice states into setting up government marketplaces for people to buy insurance in an open, transparent setting. Some did, some didn’t. The feds picked up the slack where states neglected to establish exchanges.
Here’s where the trouble occurred: ObamaCare is based primarily upon taxing rich people and giving the money in the form of subsidies to low-income and hard-to-insure people. But the law states that the subsidies can only go to those “enrolled in through an Exchange established by the State…”’ Nowhere is the federal government mentioned. Thus, subsidies technically can’t be provided through a federal exchange.
End of story, right? Not so fast. In sticking to the plain language of the law, conservatives thought they had this case in the bag. But then that pesky thing called human emotion got in the way.
Writing for the majority opinion, Chief Justice Roberts explained that while, “while the meaning of the phrase ‘an Exchange established by the State under [42 U. S. C. §18031]’ may seem plain ‘when viewed in isolation,’ such a reading turns out to be ‘untenable in light of [the statute] as a whole.’” Essentially, while the petitioners have, to use Roberts’ words, a “strong” argument about the plain meaning of language, it doesn’t matter. If the Supreme Court were to declare ObamaCare subsidies to half the country illegal, it would upend the entire system. “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral,” Roberts concluded.
Justice Antonin Scalia, in his usual sagacious fashion, penned an incensed rebuttal to the ruling. Not only did he call the Court’s decision “unnatural” but also “pure applesauce.” “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,’” he boomed.
Scalia, bless his heart, still believes that reason can overcome the pull of human sympathy. Like many on the right, he blames big government and activist court judges for the scourge of ObamaCare. He is wrong. The blame isn’t with the American government; it’s with the idea that state authority can somehow escape the throes of passion so closely linked with human nature.
This thinking stems from one period: the Enlightenment. After centuries of rule by kings and biblical authority, the Age of Enlightenment was supposed to deliver mankind from capricious despotism and establish a rational order. The era would introduce skepticism of the old way of things, and look to science, starting with Isaac Newton, to push mankind forward along the path to prosperity.
It is from the Enlightenment that we have the idea of an impassioned law, informed by reason and enforced equally. Studying this period helped the American Founding Fathers devise the idea of separation of powers. The Founders were students of the Enlightenment, and thought that by splitting the federal government into three branches, they could limit the power of each.
How wrong they were. Had things gone as planned, the United States government would be much smaller, spend less money, and be less belligerent. Instead, we have bureaucrats and judges creating laws out of thin air. We have a president that chooses which laws to obey. And we have rule by the whims of a select few, instead of by law.
In Common Sense, Thomas Paine summed up the founding vision of America: “[I]n free countries the law ought to be king; and there ought to be no other.” That was a dreamy illusion. Man-prescribed law is still created by men. Thus, it can be undone by men, more easily than it came about. Law is no king; it’s just a tool men use to cope with running a society.
ObamaCare is here to stay not because America didn’t hold the course for liberal democracy. It is the law of the land because that is exactly what the American system of government allows for. Democracy doesn’t weed out dictators, it only lets us pick a few of them every couple of years. And these leaders are rarely stalwart in upholding the law equally and without bias. That’s why a few men and women in black robes just dictated how a health care system for 320 million people operates.
American democracy is emotive democracy. Like Horace said, naturam expellas furca, tamen usque revenit. Elevating human rationality above primal urges has failed. We’re never going to fix our sinful selfs. That’s God’s job, anyway.