Normally there are two methods the court uses when interpreting the law. There is a textualist approach where they look at what the law says and an approach where they look at the intent of the law when the text is not clear. In today’s King vs. Burwell decision the Supreme Court invented a new standard of review whereby they determine what the goal of a law is and decide to pretend a law means something other than what was written or intended if they perceive that to be at odds with the goal of a law.
The ACA had used subsidies as a form of extortion to get states to set up insurance exchanges. They didn’t anticipate that the extortion would fail and they would be forced to set up a federal exchange to keep the whole insurance scam afloat so they made no provision for a federal exchange. The people who crafted the bill and those who voted for it were very explicit in the purpose of the exchange and subsidy provisions. There was no doubt as to the intent. And the text was also clear that the exchanges were to be state exchanges and not a federal exchange. There was, and is, no law that authorizes the formation of a federal insurance exchange. Yet we have such an exchange now.
This poses several problems, not the least of which is what is such an exchange supposed to look like and how is it supposed to function without any authorizing legislation? How will it be funded and to what extent? Will its provisions be the same as for the state exchanges? Is that even possible? And who gets to decide? My guess is that Obama will get to continue making it up as he goes along and who is to stop him since we lack an opposition party in this country?
I think if there were an opposition party they would be deluging the Supreme Court with requests for the details of how this entity is supposed to be run. And in fact, the court will likely have to address that going forward as they have no doubt opened up a whole new series of issues. Lawyers will be looking through each provision of the legislation that authorized state exchanges and seeing which would not apply or make sense in a federal exchange. Then they will go to the Supreme Court again and again for decisions as to one aspect or another because the Supreme Court is the authorizing entity for this. There is no where else they can turn. My guess is the court will fob off that responsibility onto the executive and thus we will have the court effectively giving official authorization to rule by fiat.
It is madness, but the people who populate our Supreme Court are much more concerned about being seen as cool by the Europeans or the media than they are about maintaining even a semblance of legitimacy.
So if you wonder how societies get to a point of complete lawlessness where it doesn’t matter what the laws say at all then you now have a concrete example. Indeed, I am not sure why they even bothered crafting any text for the ACA at all. No one read it. Obama ignored it. And the Supreme Court has ruled repeatedly that any word in it is as good as any other. A mandate is a tax, a state entity is a federal one and all that matters is the end goal as they perceive it.
On the bright side, how completely worthless are law degrees now? If you can’t go before the court and argue the text or intent of a law why bother getting one? Why learn anything about the law at all if it doesn’t matter when push comes to shove? Why go through the forms when the substance does not apply? Why argue with these imbeciles when if you say “red” they will turn around and pretend they hear “blue” or worse, that there is no difference?
If you can’t even agree on the meaning of words or that they matter then how can you communicate at all? How can any citizen know what is expected of them under the law when they cannot read it and have any chance of knowing what is required of them? How can they be expected to know that federal means state in this one instance and this one instance only? How can they know that a mandate is a tax for the Supreme Court but not for the legislature because that is the only way the ruling elite could thread the needle and get the end result they wanted?
They can’t and that is what defines a tyranny. If such principles were applied across all of our laws we might as well just let law enforcement make it all up as they go along. Every man can be made a criminal when the law is just a set of goals or aspirations as the Supreme Court just ruled.
What has been driven home in all of this mess is that you have no recourse to the law. This is what they want you to know most of all. They will pretend a law says whatever they want it to say to get the result they want. In a well functioning society this would be called treason. In ours it is called “Thursday.”
The central question of our time is simply this; given the fact that we are only complying with the edicts of our government out of fear and habit rather than any legitimacy it can claim from its authorizing documents, what is to be done to remedy things? How long can this go on where the government is not bound by any law but the people are bound to the whims of whoever sits in power? No society survives for long under such conditions.
And the truth is that people will suffer under tyranny until it is absolutely unbearable because unlike their leaders they tend to be good, and decent, and kind. They know the cost of the alternatives. But I have to think we took a huge step towards reaching the end of their patience today. And the fact that there are no options at the ballot box only exacerbates the situation. It is not like you can elect Republicans and expect things to improve as we have just recently seen with the Republicans being given two houses of Congress only for them to turn around and prioritize passing Obama’s agenda for him. Our ruling class loathes us so much they are even importing a new electorate to take our place.
On the bright side, a law allowing the government to steal people’s raisin crops was recently struck down by the Supreme Court. It was passed during a time similar to this one when the ruling class went insane and tried to control every aspect of the economy and the lives of its people. That was all a massive failure just as the ACA is and it was injurious of our liberties and prosperity just like the Supreme Court decision today. But it was no longer important to the ruling class to control raisin crops so the pretenses which allowed raisins to be stolen were no longer important to be maintained.
It is heartening to know that a fever can pass and the nice thing about the current pretenses attached to the ACA is that they are so absurd it is hard to imagine them maintaining for very long or being applied in other cases. They are that explicitly just a set of rationalizations. The court is populated with political hacks, dullards, and men of low character, but I think even they will be smart enough to see the repercussions if they pretend what they did in this case can be applied to others. Which makes what they did all the more egregious even if it limits the damage.
The left wants national healthcare and the court will do what has to be done to deliver it to them. That is the long and short of it. The planned failure of the ACA is a necessary step in that direction. We are going to ride this train all the way down just like we did with Social Security. But at least our raisins are safe. A slim reed to hang ones hopes upon but I am afraid it is all I have at the moment.
Other takes on the matter.