An Inartfully Drafted Law, Indeed: Obamacare Upheld


In the wake of The Supreme Court wrangling language to uphold Obamacare yesterday, many opinions happened. From Chief Justice Roberts being declared a fake conservative who hates the rule of law, to Justice Scalia achieving the title of “Most Metal” SCOTUS judge, people and pundits are still processing what it means that our highest court in the land has ruled to keep a law that — and make no mistake about this — will continue to not work and therefore be an economic and logistical disaster, be very expensive, and be very, very hated. (And, for those kids posting .gifs of Obama as the cool kid for “winning”, please do some research. He’s won nothing. Nor have you.)

Anyway, let me just pile on with an opinion of my own, and it might be slightly in defense of Roberts because I maybe, kinda, can see what he’s doing. But by doing anything, he’s doing what he says he doesn’t want to do. I know. Let me explain…

I agree with that Cato piece up top when it says:

Afraid that ObamaCare as written would throw the sickest patients out of their health plans a second time, the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations: If you are going to violate the law, make sure you go big.

Roberts was pretty clear in his opinion that it was up to the Court to decide the meaning of ambiguous parts of the law:

But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words “in their context and with a view to their place in the overall statutory scheme.”

And further, as the Cato piece notes, the law couldn’t possibly want to leave states with a decimated insurance market (caused by Obamacare, but who remembers that anymore, amiright?) AND no subsidies:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner.

And so here we are.

Now, Justice Scalia spoke for all of us who find our brains twisted by this logic when he noted in a dissent that will surely go down in history as one of the greats:

“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State.’ And it is hard to come up with a reason to include the words ‘by the State’ other than the purpose of limiting credits to state Exchanges.”

But if I could defend Roberts for just a minute and only a little, for a thing that may actually become a big thing in retrospect (and I realize I did this before defending him when he declared a mandate a tax. But bear with me…)

It would appear that Roberts is playing a judicial activist to ensure that the Supreme Court doesn’t become a bench of judicial activists. Is he doing this purposefully? Man…I don’t know. But that’s what’s happening.

Ben Stein made a quip yesterday on a news program that he was taught early at Yale Law that Supreme Court justices read election returns. And so Roberts is — and only possibly, and only in the opinion of someone who is less than an expert on these things (read: me) — reminding the American people that it is not the job of the Court to save them from their terrible election decisions. “You voted these winners in and the Court can only interpret their horrible legislative drivel, not throw it out to spare you the consequence of being a nation of willfully low-information voters.”

Or something.

And it’s already begun, the posturing for 2016. This issue of repeal and replace may very well become THE issue that clears a path to the White House for someone under the GOP banner. Because look, the GOP wasn’t ready to deal with the fallout should the law have been upended by the Supreme Court declaring the subsidies unavailable to all states. It’s all been Voxsplained pretty effectively.

So even though Chief Justice John Roberts wrote another opinion upholding the health-care law, the conservative actually did Republicans a favor. The 6-3 ruling spares House and Senate GOP leaders from having to act. And it liberates Republican primary contenders from having to talk about subsidies. Instead, Republicans can return to the safe ground of “repeal and replace” Obamacare rhetoric rather than having to go down the far riskier road to action.

It took McConnell no time to start the ball rolling that this remains on his radar. Will it, two years from now, more entrenched than before, but likely still not working worth a damn, remain as vilified to the point the voters will elect a Jeb Bush or a Marco Rubio over a Hillary Clinton? I — unlike other writers we have — am not a psychic so I do not know. I just know it’s possible.

The problem is that by trying to preserve the reputation of the Court as impartial and forbidden from partisan advocacy from the bench, Roberts had to do just that, in pretty dramatic fashion, and rather tortuously by interpreting language almost to the point of redefining it.

And while many think Roberts has closed the book on SCOTUS interpreting a law that, at its core, is just really shoddy work (possibly intentionally), he may have kept that door cracked when he noted the many examples of “inartful drafting” contained within the language of the law.

It’s a hell of a gamble. I’ll be mixing myself more than a few of these waiting for 2016.

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