People who like the outcome of King v. Burwell today have no refuge in law. There is no firmament beneath their feet. Nothing to appeal to, now that the Supreme Court has decided, in a 6-3 decision, that the Obamacare law doesn’t mean what it is written to mean.
All the cheerleaders have is their enthusiasm for this ruling, about this law.
They’re going to find out much sooner than they might imagine that the protection they have enjoyed, under the aegis of the rule of law, is gone. The dam has been breached. The straw has broken the camel’s back. Whatever metaphor you want to use: the rule of law in the United States has been fatally compromised.
It can’t help but be so, because this case was so crystal clear. Justice Antonin Scalia’s dissent, on behalf of Justices Clarence Thomas, Samuel Alito, and himself, is being widely cited already, and he puts it thus:
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…Under all the usual rules of interpretation, in short, the Government should lose this case.
(Wall Street Journal has one of the better selections from the Scalia dissent.)
There was nothing obscure or profoundly arguable about the point being decided in this case. As Scalia says, it should never have gotten to the Supreme Court, because it was so obvious all along that the law as written meant subsidies were only available for insurance policies purchased in exchanges established by the states.
We know, of course, that Jonathan Gruber, one of the law’s chief architects, explicitly said Obamacare was intended to limit subsidies to policies purchased in state exchanges, because that would induce states to join the program and set up exchanges.
But we didn’t actually need to know that. The law means what the law says, and the court’s charter (per Scalia, again) isn’t to repair the law but to interpret it as written. It’s the legislature’s job to repair the law, if it has a consequence that eventually becomes unintended.
Fittingly, as reported by Josh Gerstein of Politico, Chief Justice John Roberts “smiled and laughed” when Scalia read out his scathing criticism of the Court’s rewriting of the law, and suggested that Obamacare should be known now as SCOTUScare (h/t: Business Insider).
Roberts smiled & laughed when Scalia said Obamacare should now be called ‘SCOTUScare,’ my colleague @ErinMershon reports
— Josh Gerstein (@joshgerstein) June 25, 2015
Yes, what a joke.
Legal minds will write more detailed briefs about the ins and outs of the decision in King v. Burwell. But what’s more important at this turning point is a sense of history, and what it means for a people when its last governmental refuge for black-letter understanding self-detonates.
We know that the legislature and the executive already abandoned reason, process, and good faith in creating the Obamacare monster. The Supreme Court has now very clearly done the same.
America can’t remain the country we have been under these circumstances. The high walls protecting the people against a weaponized government have collapsed. There are still many who don’t see that – including conservatives – and I am deeply sorry for their blindness and unpreparedness. Many of them mean well, or at least want to.
If you think your slice of America will be able to coast along in a consequence-free hiatus after this ruling, you haven’t been paying attention. This isn’t Roe v. Wade, and it’s not 1973. It wasn’t like this in the 1970s. I was there. America reeled under a number of blows in that shabby, often silly decade, but there was a center, and it held.
Today, the bulwarks of modern civilization have been collapsing around us, throughout the globe, for at least the last four years: faster and more dramatically than anyone would have predicted – and indeed at an accelerating pace. We can expect the process to continue speeding up, even if it’s hard to predict from day to day exactly what events will mark its progress.
Get up on the walls
But don’t despair. Times of great upheaval are times of great opportunity. It matters that your heart is alive here on this earth, with the law of God written on it. That’s where liberty and good human government come from anyway. Many of our neighbors are still here in the same condition. The head of America is putrefying, but much of the great body is still intact.
There will be no “America” down the path we are on. That much is certain. But only that is certain, and we are lucky that it is. Unlike the situation of the 1970s, we are clear now – those of us with eyes to see – on what can’t be accepted; can’t be struggled along with in a semblance of normality.
Those who predicted that we would end up this way, from decades of tempting fate by straying further and further from the intent of our Constitution and the character of a people fit for liberty, were right. Those same people are right today. This is the time of emergency, when things have gone too far and the country we live in is not the one we intended to preserve. How fortunate we are to have such clarity on that today, with the lying, obfuscation, and abuse of law and government so glaringly obvious.
So we must be watchmen on the walls. Liberty and limited government never just happen. They always have to be established – over the objections of the fearful; over the objections of the small-minded; over the objections of people who want to deny their benefits to their fellow men.
Few generations are ever privileged to see the truth about what is happening to them as clearly as we do. In some ways, it is an awesome thing (in the sense of inspiring solemnity and reflection) to witness the events of today’s world. And keep in mind: the end of wisdom and enlightenment is not death, but life and hope.
Watch on the walls, my friends. The only thing that guarantees defeat is giving up.