Laurence Tribe’s op-ed about the King v. Burwell ruling is typical progressivism. It’s all about rationalizing a terrible, wrong-headed decision. Tribe made some statements that deserve rebutting. This is one of those statements:
The Supreme Court correctly applied standard interpretive methods in holding that, despite the apparent clarity of those four words, the law makes subsidies available on all exchanges, state and federal. Looking to the overall purpose, structure, and context of the Act, the court asked with incredulity why Congress would risk total implosion of the ACA just to encourage states to create their own exchanges especially when Congress itself provided the federal backstop.
When the words are clear, which they are, the test that Tribe mentioned isn’t applied. Typically, that test is only applied if the words are ambiguous. Chief Justice Roberts said that the 4 words were “inartful drafting.” Justice Scalia’s response was that it wasn’t likely that that inartful drafting would appear in the ACA’s language 7 different times.
As for whether Congress “would risk total implosion of the ACA just to encourage states to create their own exchanges”, the answer is yes. That’s why the federal government didn’t start building their website right away. Their plan — their concerted plan — was to pressure states into creating their own exchanges. Further, the IRS didn’t write its rule extending subsidies to people who bought their insurance through HealthCare.gov until it was clear that a substantial number of states weren’t going to create state-run exchanges.
Isn’t it curious that that clarification wasn’t the first thing mentioned in the rules? The instructions to the IRS weren’t written until late in the process. Why wasn’t it the first rule written? If the ACA’s success hinged on the subsidies, shouldn’t that have been the first rule written?
The people also won because the Roberts Court has given them a solid basis for trusting that hard-won victories in Congress will remain intact when challenged in the court. When it decides constitutional cases, like the much-anticipated same-sex marriage cases, the court’s role is to serve as a check on the people, ensuring that legislative or popular majorities don’t act in violation of the Constitution. This is the sense in which the court has famously been described as “counter-majoritarian.”
The Constitution was built to restrict what government isn’t authorized to do. That’s insanity. The Fourth Amendment wasn’t written to tell people what they couldn’t do. It was written to tell government what it can’t do. Specifically, the Fourth Amendment prohibits the government from conducting unreasonable searches against private citizens and publicly-traded companies.
The First Amendment prohibits Congress from writing laws that restrict people’s ability to speak out against politicians and government. It isn’t a check on people. It’s another check on government.
If Prof. Tribe can’t understand the most basic principles underpinning the Constitution, then his opinions on Supreme Court rulings is questionable.
Gary:
You went on a big rant, but missed a big point. Lets not forget that Obamacare was passed when in 2009 a President had been swept in with a Congress just because the people weren’t happy with the current President and the current ruling party. Tribe’s argument is that the people can’t be allowed to think especially after they see the effect of bad laws have been passed that need to be repealed or at least dramatically changed. In other words he’s arguing once something is passed no matter how bad it should remain law. That is certainly what the constitution wasn’t meant for. Somebody should ask Tribe why did we need I believe the 21st amendment if the 18th amendment was so good for the country.
Walter Hanson
Minneapolis, MN
Have you seen Larry Klayman’s opinion reported on the WND site? It kind of squares with your analysis.
Walter, I didn’t mention that because it’s irrelevant in terms of determining a law’s constitutionality. In King v. Burwell, it was that Chief Justice Roberts said that the clearly written phrase of “Exchange established by the States” was ambiguous. The test that Roberts applied is only supposed to apply when the text wasn’t clear. The text was clear. Roberts just didn’t like the outcome. If he wanted to have input on a bill’s language, he should’ve been a legislator or a legislative assistant.
The Founding Fathers established 2 political branches and a single judicial branch. For all intents and purposes, we have 3 political branches and an unaccountable branch (bureaucrats with rulemaking abilities).
Eric, While I disagree with some of Klayman’s conspiracy theories, I certainly agree with him that the “concept of life tenure was intended to insulate the justices from the influences of politics.” Instead, these justices are wannabe politicians. They’ve become a third political branch when we need them to be the branch that tells the executive and legislative branches when they’ve exceeded their constitutional authorities.
In the case of the ACA, the executive and legislative branches dramatically exceeded the authority the Constitution gave them.