With the Supreme Court saving Obamacare’s hide yet again, what does its decision and the actions of the administration in implementing the law mean for Congress’s authority to write legislation? More fundamentally, what do they mean for the constitutional system itself.

From the beginning, Obamacare has been riddled with dubious political moves by both the executive and judicial branches in order to keep the whole law from collapsing. The president created exceptions and changed deadlines with the flick of a pen. And the Supreme Court essentially rewrote the law on its own terms. The decision did nothing to clear up the mess, as Michael Cannon summarizes in a recent USA Today article.

Last month’s Supreme Court’s ruling in King v. Burwell has made it official: There is not a single person in the United States who actually believes Obamacare can work as written. The only question that remains is, who gets to rewrite it?

In the 6-3 decision, Chief Justice Roberts essentially rewrote and saved Obamacare’s bacon for a second time. The ruling to keep the Affordable Care Act intact was not surprising. Of course, we should note that by “intact” we mean he completely altered the contextual meaning of the law in order to push it over its most obvious hurdle – state participation.

As written, the Patient Protection and Affordable Care Act allows for certain taxes and entitlements only through “an Exchange established by the State,” not through states with a federal exchange. Clearly, the administration did not intended for 34-38 states to flat out not participate and create and exchange, making the law essentially unworkable.

Yet, even with the operative language being what it is, Justice Roberts chose to follow the much debated statutory interpretation of purposivism. In other words – follow the intent or purpose of the law. This contrasts with textualism – the text being what governs, not what the judge assumes the lawmaker wanted to accomplish. Justice Roberts, in effect, rewrote the law to change the legal meaning of “State” to include the Federal Government.

While the meaning of the phrase ‘an Exchange established by the State’ may seem plain when viewed in isolation, such a reading turns out to be untenable in light of the statute as a whole…

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter

Most Americans, Justice Scalia included, see “plain” language as an undebatable topic. Congress wrote “Exchange established by the State” seven different times in the law. But Roberts basically took on the role of legislator and applied a broad and ambiguous interpretation that assumes Congress made a typo.  As Scalia writes; “What are the odds, do you think, that the same slip of the pen occurred in seven separate places?”

It takes little effort to see the the position this places Congress. If the administration and the Supreme Court are apprehensive in allowing the law to take effect as it was written, and claim the authority to place their own spin on laws Congress passes, what does this say to the legitimacy of Congress’s power to actually legislate? The actions of the Court and the president essentially relegate Congress to the role of writing rough drafts, not law. The House and Senate merely creates an outline the other branches use to assert their own legislative wills.

The SCOTUS Obamacare decisions and the actions of the Obama administration in implementing the PPACA not only extended a horrible and unconstitutional law, they also further undermined the separation of powers fundamental to the American system.

In today’s USA everybody is a legislator.



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