Trent England | June 25, 2015
Court saves politicians from pesky citizens
The Obama Administration would have gotten away with it too, if it weren’t for those meddling kids, er, citizens.
Actually, the Obama Administration is going to get away with breaking the law—their own law, no less. With today’s decision in King v. Burwell, Chief Justice John Roberts and five other justices step in at the last moment to prevent the unmasking of Obamacare.
As the Chief Justice notes in his opinion for the Court’s majority, Obamacare is entirely dependent on wealth redistribution. Payoffs flow through the pockets of voters into the coffers of insurance companies. The text of Obamacare says these subsidies are for customers in health insurance exchanges “established by the State.”
Why limit the subsidies? The idea seems to have been to force states to participate in, and thus become complicit with, Obamacare.
All did not go as planned. For the first time in our nation’s history, a new and massive federal entitlement program was rejected by a majority of Americans. Even more surprising, state politicians stood up for their own citizens against Washington, D.C. A majority of states refused to set up Obamacare health insurance exchanges.
To keep the money flowing, the Obama Administration determined to ignore the words of Obamacare and provide subsidies to customers who purchased insurance on exchanges established by states or by the federal government.
States and individuals challenged the Administration in federal court. Justice Antonin Scalia explained the case today in his dissent, which was also signed by Justices Clarence Thomas and Samuel Alito.
This case requires us to decide whether someone who buys insurance on an Exchange established by the [federal government] gets tax credits. 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. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.
Chief Justice Roberts retorts that “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them.” The Court, he writes, “must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Of course, if every state had accepted Obamacare, this dispute would not even exist. If most states had gone along, enforcing the text of Obamacare would not threatened to “destroy” it. The trouble, for Obamacare and Chief Justice Roberts, is the American people.
The American people, acting through their state elected officials, threatened to unmask Obamacare. Refusing to establish state exchanges and then enforcing the law as written would have slashed subsidies that flow to Obamacare’s big business backers. This might have compelled Congress and the President to do what the people wanted—to significantly change or entirely eliminate Obamacare.
Responsibility remains with Congress and the next President to solve the many problems created by Obamacare. Yet with today’s decision, Chief Justice Roberts saves Obamacare not only from itself, but from the meddling of citizens and state elected officials who believed we live in a nation of laws.
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.