Thomas Lucente: Decision worse than Dred Scott

Last week’s Supreme Court decision was worse than its 1857 Dred Scott v. Sandford decision, at least in its reasoning. Indeed, it was probably the worst decision ever issued by the court since its first decision in 1791.

No, not the Jun 26 Obergefell v. Hodges decision recognizing same-sex marriage. I am talking about the June 25 decision in King v. Burwell saving the Patient Protection and Affordable Care Act from its deserved demise.

Just as Chief Justice Roger B. Taney is universally criticized for the Dred Scott decision and his attempt to settle the slavery question once and for all, history will treat Chief Justice John G. Roberts just as badly for his tortured decision trying to rescue Obamacare.

Even supporters of Obamacare, at least the honest ones, would have to admit the decision Roberts crafted was, as Justice Antonin Scalia wrote in his dissent, “Absurd.”

The law was clear. In no uncertain terms, Obamacare, as drafted by the Congress, restricts subsidies to “an exchange established by the State.” And elsewhere in the law, “state” is specifically defined as “each of the states and the District of Columbia.” It then is obvious, under the law as written, subsidies are available on exchanges established by a state and exchanges established by the federal government are not exchanges established by a state.

Period.

There was no room for judicial review. The law is what the law says.

Roberts, however, ignored that basic premise and tried to divine the overall purpose of the legislation and made a ruling based on his assumptions about that overall purpose.

This is something that is done with contracts, not statutes. If courts began applying such a standard to statutory interpretation, then the courts will become nothing but super legislatures, rewriting laws despite what they say.

It brings up thoughts of the ridiculous notion that we have a “living” constitution subject to the political whims of the day. That kind of nonsense is what leads to the slide into progressive big government, i.e., totalitarianism.

And no one knows that as well as Roberts himself.

The day after the King v. Burwell, Roberts wrote in the dissent of Obergefell v. Hodges: “Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”

And, perhaps more important, he wrote: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

Roberts’ own words in Obergefell v. Hodges is the best criticism of Roberts’ words in King v. Burwell.

Well, maybe second best.

Scalia, as he often does, hit the nail on the head in his dissent: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

Indeed, Roberts logic reminds me of the quotation, often wrongly attributed to President Abraham Lincoln: “How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.”

The same holds true for Obamacare. Calling a federal exchange a state exchange does not make it so.

You don’t need to be a lawyer to see that the law specifically limits subsidies to exchanges run by states. This could have been by design. It is quite plausible, based on the text of the law, to assume Congress intentionally restricted payment of subsidies to state exchanges as a way to induce states into setting up exchanges so their residents could receive subsidies.

The proper course of action would have been to rule that subsidies are limited to state exchanges and tell Congress if it intended differently it would need to modify the law.

Someone needs to tell Roberts that is how “a government of laws, not of men” actually operates.