The Washington D.C. cocktail circuit will have the
appearance of a presidential inauguration after the Supreme Court once again
saved Obamacare by rewriting the law.
Chief Justice Roberts can make his grand entrance into the salons of the
political elite knowing he’ll be christened the savior of Obamacare. What a travesty.
Once again, I’m reminded of the prophetic writings
of the pseudonymous writer, Brutus and his dire warnings of an unchecked and
unscrupulous Supreme Court.
The judicial power will operate to
effect, in the most certain, but yet silent and imperceptible manner, what is
evidently the tendency of the constitution: — I mean, an entire subversion of
the legislative, executive and judicial powers of the individual states. Every
adjudication of the supreme court, on any question that may arise upon the
nature and extent of the general government, will affect the limits of the
state jurisdiction. In proportion as the former enlarge the exercise of their
powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety of considerations.
Justice Scalia summed up the extent of this Supreme Court’s
judicial activism in his dissent.
Today’s
opinion changes the usual rules of statutory interpretation for the sake of the
Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent
Business v. Sebelius, 567 U. S. ___, this Court revised major components
of the statute in order to save them from unconstitutionality. The Act that
Congress passed provides that every individual “shall” maintain insurance or
else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the
Commerce Clause does not authorize a federal mandate to buy health insurance.
So it rewrote the mandate-cum-penalty as a tax. 567 U. S., at ___–___
(principal opinion) (slip op., at 15–45). The Act that Congress passed also
requires every State to accept an expansion of its Medicaid program, or
else risk losing all Medicaid funding. 42 U. S. C. §1396c.
This Court, however, saw that the Spending Clause does not authorize this coercive
condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid
expansion. 567 U. S., at ___–___ (principal opinion) (slip op., at 45–58).
Having transformed two major parts of the law, the Court today has turned its
attention to a third. The Act that Congress passed makes tax credits available
only on an “Exchange established by the State.” This Court, however, concludes
that this limitation would prevent the rest of the Act from working as well as
hoped. So it rewrites the law to make tax credits available everywhere. We
should start calling this law SCOTUScare.
Perhaps the
Patient Protection and Affordable Care Act will attain the enduring status of
the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s
two decisions on the Act will surely be remembered through the years. The
somersaults of statutory interpretation they have performed (“penalty” means
tax, “further [Medicaid] payments to the State” means only incremental Medicaid
payments to the State, “established by the State” means not established by the
State) will be cited by litigants endlessly, to the confusion of honest
jurisprudence. And the cases will publish forever the discouraging truth that
the Supreme Court of the United States favors some laws over others, and is
prepared to do whatever it takes to uphold and assist its favorites. I dissent
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