"It is not our job to protect the people from the consequences of their political choices," Chief Justice John Roberts observed three years ago in National Federation of Independent Business v. Sebelius, the case that is usually described-with a good deal of imprecision-as having "upheld" ObamaCare. Did the chief justice mean what he said? Today the court delivered another ObamaCare ruling, this time entirely in the administration's favor and by a vote of 6-3. Unlike in NFIB, the majority in King v. Burwell spoke with a single voice, Roberts's. So did the dissenters, that of Justice Antonin Scalia. As Scalia sums it up: "The Court holds that when the Patient Protection and Affordable Care Act says 'Exchange established by the State' it means 'Exchange established by the State or the Federal Government.' That is of course quite absurd." The practical consequence is that despite the limiting language, tax subsidies will continue to flow to people who buy medical-insurance policies in the majority of states, which have not established exchanges. The justices went further in the administration's favor than the Fourth U.S. Circuit Court of Appeals, whose judgment they upheld. As Roberts explains (citations omitted here and in subsequent quotes): "The Fourth Circuit viewed the Act as 'ambiguous and subject to at least two different interpretations.' The court therefore deferred to the IRS's interpretation"-a doctrine known as Chevron deference. In a similar case called Halbig v. Burwell, the U.S. Circuit Court of Appeals for the District of Columbia had ruled that the statute was not ambiguous-that the provision limiting subsidies to policies purchased through "an Exchange established by the State" did in fact limit subsidies to policies purchased through "an Exchange established by the State." As Scalia observes: You would think the answer would be obvious-so obvious there would hardly be a need for the Supreme Court to hear a case about it. . . . Words no longer have meaning if an Exchange that is not established by a State is "established by the State." We hope Scalia pantomimed that last sentence while reading his dissent from the bench, just in case the conclusion is true. The majority, meanwhile, engages in a lengthy analysis of the language of various parts of the statute, which the chief justice sums up as follows: The upshot of all this is that the phrase "an Exchange established by the State under " is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges-both State and Federal-at least for purposes of the tax credits. But the majority rejects the Fourth Circuit's application of Chevron deference, which would leave the interpretation to the executive branch: Whether those credits are available on Federal Exchanges is . . . a question of deep "economic and political significance" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. This is not a case for the IRS. It is instead our task to determine the correct reading of Section 36B. The "correct interpretation," in the majority's view, is the administration's, because it makes more sense in the "context" of "the overall statutory scheme." Try wrapping your mind around that: The court asserts that the language of the statute is ambiguous at the same time it holds that the meaning of that language is not. The court's declaring an authoritative interpretation rather than applying Chevron deference has an important practical effect: It binds future administrations to interpret the law the same way this one does. And as Scalia points out, this is not the first time the justices have "revised major components of the statute in order to save them." He rehearses the holding of NFIB: The Act that Congress passed provides that every individual "shall" maintain insurance or else pay a "penalty." This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an "Exchange established by the State." This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. The majority acknowledges that the ObamaCare is a bit of a mess, or, as Roberts understatedly puts it, that it "contains more than a few examples of inartful drafting": 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." 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. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Scalia's answer: It is not our place to judge the quality of the care and deliberation that went into this or any other law. . . . Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility. One of Scalia's colleagues agrees: 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. That was the extended version of the Roberts quote from NFIB with which we opened today's column. How can these two jurists, who broadly agree in principle about the court's proper role, apply those principles in such radically different ways? Here's one hypothesis: A few months after the court handed down NFIB, Barack Obama was re-elected (albeit with the help of IRS's abuse of his political opponents, a qualification that is especially poignant today). Perhaps that is the only "political choice" the chief justice has in mind. As Finley Peter Dunne's Mr. Dooley observed, "th' Supreme Coort follows th' election returns." No. 1: SCOTUS Is a 'Threat' "I write separately to call attention to this Court's threat to American democracy." No. 2: Our New Rulers " t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact-and the furthest extension one can even imagine-of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." No. 3: Naked Claim to Power "This is a naked judicial claim to legislative-indeed, super-legislative-power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.' A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy." No. 4: 'Pretentious' and 'Egotistic' "The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so." No. 5: Five Justices Think They Know All "The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds-minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly-could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their 'reasoned judgment.' These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution." No. 6: Court's Reputation Diminished "The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis." No. 7: 'Profoundly Incoherent' " he opinion's showy profundities are often profoundly incoherent. 'The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.' (Really? Who ever thought that intimacy and spirituality were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) "Rights, we are told, can 'rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.' (Huh? How can a better informed understanding of how constitutional imperatives define an urgent liberty , give birth to a right?) "And we are told that, ' n any particular case,' either the Equal Protection or Due Process Clause 'may be thought to capture the essence of right in a more accurate and comprehensive way,' than the other, 'even as the two Clauses may converge in the identification and definition of the right.' (What say? What possible 'essence' does substantive due process 'capture' in an 'accurate and comprehensive way'? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses 'converge in the identification and definition of right,' that is only because the majority's likes and dislikes are predictably compatible.)" No. 8: Supreme Court 'Ends' Public Debate "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. ... Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. "But the Court ends this debate, in an opinion lacking even a thin veneer of law." No. 9: A 'Judge-Empowering' Decision "Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasoned judgment,' thinks the Fourteenth Amendment ought to protect. That is so because ' he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ' One would think that sentence would continue: '. . . and therefore they provided for a means by which the People could amend the Constitution,' or perhaps '. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.' But no. What logically follows, in the majority's judge-empowering estimation, is: 'and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.' The 'we,' needless to say, is the nine of us." No. 10: Violating Principles " o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation." No. 11: Overthrowing the Government " hat really astounds is the hubris reflected in today's judicial Putsch." No. 12: 'One Step Closer ...' "With each decision of ours that takes from the People a question properly left to them-with each decision that is unabashedly based not on law, but on the 'reasoned judgment' of a bare majority of this Court-we move one step closer to being reminded of our impotence." http://ift.tt/1LOxg3C

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Sen. Ted Cruz Gives Floor Speech on King v. Burwell SCOTUS Decision

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