Co-authored with William J. Olson
Now that the United States Supreme Court has once again rescued Obamacare from imploding, Justice Scalia, writing in dissent in King v. Burwell, has coined a new nickname for the Patient Protection and Affordable Care Act (“PPACA”) – “SCOTUScare.”
On page after page, Justice Scalia documents that instead of exercising legitimate judicial power to “say what the law is,” Chief Justice Roberts has once again exercised sheer political will to rewrite PPACA in order to save it. If a law does not operate as intended, it is up to Congress, not the Court, to fix it.
Having previously fixed the “individual mandate,” transforming it from a “penalty” into a “tax,” the Chief Justice has now taken the PPACA phrase, “Exchange established by the State,” and rechristened it to mean, “Exchange established by the State or the Federal Government.” In support, the Chief Justice asserted that it was the “context and structure of the Act [that] compel us to depart from what would otherwise be the most natural meaning of the pertinent statutory phrase.” Later, in his concluding paragraph, the Chief Justice put aside the legal legerdemain and admitted what he was actually doing: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If it is at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Instead of performing its constitutional responsibility to apply its legal judgment -- impartially interpreting the PPACA text -- the Supreme Court under Chief Justice Roberts has become PPACA’s political enabler. As Justice Scalia observes in the concluding paragraph of his dissent: “[T]he cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
Justice Scalia is right. The justices on the High Court, as well as the judges sitting on the federal district courts and courts of appeals are increasingly bold in yielding to their own personal agendas. Such hubris cannot continue forever. King v. Burwell may very well help end a 50-year period during which the American people have quietly respected the courts’ decisions as law, even when disagreeing with their rulings. With such transparently political outcomes like the one handed down today, more and more people are beginning to see the courts as they increasingly are – above the law and the Constitution.