Roberts Saves ObamaCare

In the case of King v. Burwell, Chief Justice John Roberts robbed the American People in a monumentally hypocritical ruling upholding the intent of the ObamaCare legislation over the actual wording of the law.

Roberts wrote:

"If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning -- or ambiguity -- of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words "in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133. Pp. 7–9.


When read in context, the phrase "an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges."

What Roberts is doing here is an interesting sleight-of-hand. He is setting himself up as a strict constructionist of the law, using the concept of Original Intent to discern not the Constitutionality of the Law itself but rather to determine if the law is following the intent of those who drafted it.

Original Intent is defined as:

"The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted“

So robbin' Roberts determined that the completely partisan vote (one requiring payoffs, kickbacks, and all manner of parliamentary skullduggery) intended to create these Exchanges whether the individual states agreed or not. And we know that is the case because Jonathan Gruber said in 2012:

"If you're a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.…  I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”

But this point seems not to matter to Roberts, who seemed determined to make this the law of the land.

If Roberts wants to stick to an original intent view of the law, why did he uphold ObamaCare in the first place? He was quick to seek the intent on the partisan Congress that barely pushed this morbidly obese elephant through the narrow iron gates of jurisprudence, but he ignored the original intent of the framers of the Constitution who would never have agreed to a central government forcing people to purchase a product as a requirement of existing in these United States. Roberts signed off on a fundamental redefinition of the relationship between the citizen and the central government with a derisive snort:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

And yet the good Justice is more than willing to protect the Administration and Congress, the powerful elites who brought us this horror, from the consequences of their political choices and their mistakes. He is also quite willing to make political judgments, as he has shown in King V. Burwell:

"The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral"

So what? What Roberts is doing here is making a policy judgment. He further states:

"Petitioners respond that Congress was not worried about the effects of withholding tax credits from States with Federal Exchanges because “Congress evidently believed it was offering states a deal they would not refuse.” Brief for Petitioners 36. Congress may have been wrong about the States’ willingness to establish their own Exchanges, petitioners continue, but that does not allow this Court to rewrite the Act to fix that problem."

But it is Roberts who is rewriting the law -- as he did in National Federation of Independent Business v. Sebelius. If the law is flawed, it is supposed to go back to Congress, not receive a rewrite from SCOTUS. Here he admits that there was political gamesmanship involved, but that doesn't matter. He also admits in this opinion that the usual open political process was short-circuited, but says that doesn't matter either.

"The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act:"


"And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement."

So, Roberts admits that this Act was a con, a snow job designed to pass without an actual intent of Congress. He knew that there was no "sense of Congress" because most members didn't even know what was in the bill, a point made by Nancy Pelosi prior to passage. There was no reason to look to the intent of the law; it had no intent, at least none that was meant to be understood. It was a trick from the beginning.

Roberts should have simply allowed it to fall of its own weight. That is judicial restraint. Saving this was an egregious act of judicial activism. If Roberts gave a flying frig about original intent he would have sent the law back to Congress. The Republicans would have dutifully amended it anyway, but at least he would not be setting a legal precedent.

This ruling, coupled with the gay marriage ruling that SCOTUS just handed down that has fundamentally redefined an institution that has always held a specific meaning, illustrated the absolute politicization of the court system. No longer content to rule on points of laws as they are written, the courts have instead taken to writing their own law, and as such they are now a rival to Congress, a rival that hides behind the cloak of lifetime appointments. The original purpose of lifetime appointments was to shield judges from excessive political pressure. Now it makes them tyrants, capable of making any law they wish. What is needed is a Constitutional amendment that at least forces judges and SCOTUS to face retention votes, and possibly recall. This would be a catastrophic move, but at this juncture something must be done. The courts, which were intended to act as conservative bodies that would restrain the more radical public passions, are now at the vanguard of revolutionary appetites. 

Roberts concludes:

"In a democracy, the power to make the law rests with those chosen by the people."

So why is he changing the law? If he weren't a hypocrite he would allow the representatives of the People to rewrite the damned thing. His actions are not those of an honest man.

Read more from Tim and friends at the Aviary. Contact Tim at