Diary

Health Care Subsidies Survive

The Supreme Court, in a 6-3 decision authored by Chief Justice John Roberts, just upheld the subsidies on the federal exchange landing the a blow to the greatest legal threat against Obamacare.  More to follow later..

After reading and re-reading the majority opinion by Roberts and the dissenting opinion by Scalia, it becomes painfully obvious to the reader that Roberts painfully reached the conclusion they did.  In effect, the majority substituted the express wording of the law with what they- the majority- believed Congress was trying to achieve.  Yet, a collection of lawyers, the Supreme Court ruled, should not be “penalized” for wording a law as they did.  Put another way, since when it is the role of the Supreme Court or any court to enter the minds of legislators and divine their intentions?

It is surprising that Scalia in his dissent did not call out Roberts by name, instead saying “the Supreme Court” when referring to “making the impossible possible” and “contrivance.”  He did reach back a few years and chided Roberts for transforming a mandate and penalty into a “tax” so that the larger constitutional question- the obvious violation of the Commerce Clause- could be avoided.  The majority opinion simply ignores the areas of the ACA which Scalia cites as evidence that “established by the State” means just that.  Instead, the majority reverts to their mind-reading of Congress circa 2009.

This was the best possible case to take down Obamacare as it would have rendered it unworkable.  Quite frankly, I am surprised Roberts did not mention the possibility that the petitioners did not have standing, thus allowing the lower court rulings to stand, thus leaving the subsidies and their interpretation for another day when people did have standing.  Taking the weeny way out would have been favorable over mind-reading and twisting the plain wording of the English language while ignoring that plain language in at least seven other areas in order to get the result one wanted.

There has been some commentary that the Roberts Court is drifting to the Left.  Today’s ruling and the other in the Texas housing case allowing disparate impact claims under the Fair Housing Act seems to confirm that theory.  And that is fine and dandy as long as you don’t twist the Constitution or the English language to reach that liberal conclusion.  Kennedy wrote the Texas case in a 5-4 decision and despite the wording and amendments to the original law and Kennedy’s “restrictions” on disparate impact claims, he too stretches interpretation of clear words to reach a desired conclusion.  This is not a victory for civil rights in housing in America- it is a victory for the civil rights legal litigation infrastructure.  Now every publicly subsidized housing project needs to take disparate impact into account lest they find themselves before a judge.  My guess is not much will get done because anything proposed will ultimately disparately impact someone.

There are five cases to go and the Court can redeem itself from its liberal tendencies this term with more conservative rulings in those cases.  I doubt it.  When it comes to the Judiciary if conservatism means anything, it is that the courts interpret the laws as written and remain true to the Constitution’s clear wording.  To those ends, conservative activism is no better than liberal activism.  Judicial activism is activism is activism, to paraphrase some poet.  That would be one thing to rail about, but John Roberts has unfortunately given us something else to rail about- rank stupid activism.