Supreme Court rewrites “in-artfully drafted” Obamacare law to fix it

The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Front row (L-R): Associate Justice Clarence Thomas,  Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan.   AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images)

PREFACE – Having read the entire 47 pages, I found this brief clear and concise.  Every word and every sentence was important and had meaning (I wish I could write like this).  This made it very difficult to pull out specific language or sentences to highlight points.  I encourage everyone to download, print, and read this document.

This courts decision will forever taint the integrity of the Supreme Court. It should serve to emphasize the importance of how these judges get their job, and  the vetting and approval process they are subjected to. These 9 people are appointed to this office for the rest of their lives.

Known as “King vs Burwell”, this case was brought by several individuals against the IRS because they were providing IRS subsidies through Federal exchanges when the law clearly stated subsidies could only be provided through a State run exchange.

Obamacare was intentionally written so that the states would need to set up their own Healthcare Exchanges to sell insurance and provide the hook required for Federal oversight of the program, via the subsidies. If a state refused to set up an exchange,  that states citizens would not be eligible for the subsidies.

From Jonathan Grubber presentation, 2012 (Click HERE to see Grubber presentation):

“What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this. [emphasis added]


A major blow to Obamacare came when many states, including Ohio, , refused to set up exchanges.  In spite of the fact that the law said subsidies could only be provided at the State operated exchanges, the IRS decided to also implement the subsidies in the Federal exchanges, hence King vs Burwell.

OHIOs PERSPECTIVE – In Ohios case,  Gov Kasich wanted to set up an Obamacare State exchange,  but was advised this was a blatant violation of the citizens based constitutional amendment “Healthcare Freedom Amendment (HFA)”.  Gov Kasich wisely decided that rather than face the furry of the all those who worked to get the HFA on Ohio’s ballot and get it passed, he would not implement the exchange in Ohio.

The Supreme Court Decision.

(CLICK HERE to download and read the entire 47 page brief )
The 5 page Syllabus (description) starts on PDF page 1
The 21 page Courts opinion starts on PDF page 6
The 21 page Dissenting opinion stats on PDF page 27

The argument is about how the law is worded:

Page 8 – Opinion:
“The parties dispute whether Section 36B authorizes tax credits for individuals who enroll in an insurance plan through a Federal Exchange.  Petitioners argue that a Federal Exchange is not “an Exchange established by the State under [42 U. S. C. §18031],” and that the IRS Rule therefore contradicts Section 36B.  Brief for Petitioners 18–20.   The Government responds that the IRS Rule is lawful because the phrase “an Exchange established by the State under [42 U. S. C. §18031]” should be read to include Federal Exchanges.”

The Opinion states the law was drafted  in a poor manner:

Page 18 – Opinion
“The Affordable Care Act 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”

And finally,  The 5 judges decided its their job to fix the law, rather than interpret what it says:

Page 26 – Opinion
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.The judgment of the United States Court of Appeals for the Fourth Circuit is Affirmed.

The Dissent opinion clearly states the 5 judges have overstepped their boundaries  in their redefining the language of the law in order to make it fit what they think the legislature wants.  The dissent identifies the cases where the law was intentionally written to coerce the states into setting up the exchanges,  but this backfired when many states did not take the bait and refused to set up the exchanges.

The Dissent opinion then goes onto say that the 5 judges then decided to re-write to law to correct  for this misjudgment on the legislatures part.

Page 23 Dissent
“Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.”

Page 29 Dissent
“Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them”

Page 43 Dissent
“Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government, the Court tries to palm  off the pertinent statutory phrase as “in artful drafting. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

Page 44 Dissent
“The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.  That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution.   They made Congress, not this Court, responsible for both making laws and mending them.   This Court holds only the judicial power—the  power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work  out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.  We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.

The last two pages specifically address the transgression of the 5 judges  that they have overstepped their boundaries and have taken it upon themselves to do the job of Congress, to write and fix laws .  The last paragraph summaries the dissent opinion.

Page 47 Dissent
“Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not.  But this Court’s two decisions on the Act will surely be remembered through the years.   The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent

John McAvoy
Original Article on Toledo Tea Party

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