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Supreme Court renames Obamacare SCOTUScare: Court offers to write all future legislation for Congress to save time and face

Good news from the Supreme Court today: If you like your health care subsidies, you can keep them. If you like limited government and the separation of powers, you are out of luck.

Now that Chief Justice Roberts and five of his colleagues found that the phrase “Exchange established by the State” means “Exchange established by the State or the Federal Government,” we should henceforth follow Justice Scalia’s suggestion that this act of Congress, which had to be passed before the People knew what was in it and then had to be rescued not once, but twice, by a complicit Supreme Court, be renamed “SCOTUScare.”

If there was any remaining doubt that the present Supreme Court of the United States (SCOTUS) was in the business of writing the law when it thinks Congress requires its better judgment rather than interpreting the law, then that doubt can be set aside. Congress, this President and even the IRS have a most clever partner in re-writing the laws of our land after the fact: SCOTUS.

The Affordable Care Act, previously known as Obamacare, is no longer the law that the Pelosi Reid clique rammed through Congress. It was first rewritten by the Court to meet whatever is left of Constitutional limits on Congress by refashioning the individual mandate from a penalty into a tax administered by the ever-competent and trustworthy IRS.

Now the Court, determined to save the country from the plain intent and meaning of the Act, has agreed with the IRS and Obama Administration that Congress intended that premium subsidies be doled out via both state exchanges and the federal exchange. This is despite the fact that Congress clearly and plainly limited the subsidies to an “Exchange established by the State.” Jonathan Gruber and other Obama consultants, who hold such high opinions on the intelligence of the American electorate, designed a carrot and stick regime to get all or most of the states to build an exchange, dangling premium subsidies, loans to build the exchanges and federal funds to expand Medicaid, all underlined by the threat of a personal penalty if people did not buy insurance.

Obamacare proponents underestimated the intensity of the opposition to the federal takeover of health care and were surprised by the wide scale rejection of the law by many states and the American people.  When it became clear that more than half the states were not going to build a state exchange, the IRS had to get the carrot out to the citizens of those states by offering the subsidy via the federal exchange.

In order to save SCOTUScare, the Court outdid itself on behalf of its signature legislation. As Justice Scalia noted in his dissent, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

President Obama, who was initially offended by the label “Obamacare” (it was after all, intended as an insult) but who proudly embraced it on the campaign trail in 2012, may object to Scalia’s suggestion that we rename the law after its best benefactor. But given that the Court has insured we will be re-working this law long after the president leaves office, it seems fitting that the Court get the credit.

On a more serious note: I recommend that you only skim the majority opinion in King v. Burwell and cut right to Scalia’s dissent (joined by Justices Thomas and Alito). Scalia’s dissent shreds the majority’s reasoning, as only Scalia can do, and reminds us of the proper role for SCOTUS and the all the courts. It is worth reading, if only for its historical value.

The King v. Burwell full opinion can be read here.




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