Judicial Activism Rescues Obamacare – Guest Essayist: Nancy Salvato

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The Supreme Court has been in the news this week and Justice John Roberts has been thrust into the spotlight because he authored the majority opinion in King v. Burwell.  In it, Roberts and the Court upheld the Patient Protection and Affordable Care Act, i.e. Obamacare. This is no ordinary decision, though.  The court’s ruling doesn’t simply interpret the law, it rewrites the law.

Peter Suderman writes in, ”In Upholding Obamacare’s Subsidies, Justice Roberts Rewrites the Law—Again” about how Roberts goes beyond interpreting the law in the majority decision.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he writes. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

And so Roberts decided that a law which explicitly and repeatedly states that subsidies are limited to exchanges “established by a State,” and which defines “State” as one of the 50 states or the District of Columbia, actually allows subsidies in exchanges established by a State or the federal government. Roberts’ decision does not interpret Obamacare; it adds to it and reworks it, and in the process transforms it into something that it is not.

Or as John Podhoretz explains, even more succinctly in his article, “The twisted logic of John Roberts’ ObamaCare ruling,”

The language is plain, as even Roberts acknowledges: “An individual [is eligible] to receive tax credits only if the individual enrolls in an insurance plan through ‘an Exchange established by the State.’”

Roberts seems to have forgotten what federalism means.  Ninja Words defines it this way:

Federalism: A system of national government in which power is divided between a central authority and a number of regions with delimited self-governing authority.

Should any state decide not to establish exchanges, that is the state’s right.  After all, this is how federalism works.  Citizens can vote with their feet, as it were.    Roberts not only disregarded the 10th Amendment, he ignores the separation of powers between the three branches of government.

Suderman paraphrases Justice Scalia’s dissent for his readers.

If Roberts had truly wanted to defer to Congress, he could have ruled that the law means what says rather than what it does not, and effectively handed the issue back to the legislature, letting Congress decide whether and how to update the law in accordance with its own wishes. Instead, Roberts made the choice for Congress—taking its power to craft law for itself. As Scalia writes, “the Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.”

True, our Legislative Branch abdicated its responsibility by carelessly crafting Obamacare and passing it hastily. By doing so, the Legislative Branch of government did not perform its duties in the best interest of the people by, using then House House Majority Leader Nancy Pelosi’s  words, passing the bill before knowing what’s in it. One of the reasons why the law passing process is so cumbersome is because the Framers understood how important it is to think through the repercussions of laws and not to act hastily.  By abdicating its responsibility, it left the law -not only open to judicial interpretation- but to actual revision by activist judges on a Supreme Court.

Judicial Activism by judges is not a new development.

Cato Institute’s Ilya Shapiro writes in, “Justice John Roberts’s Obamacare Decision Is an Orwellian Mess,”

Activism, typified by the four Democratic-appointed justices, finds in the Constitution no judicially administrable limits on federal power.

The law in question forces citizens to purchase health insurance or pay a tax.  Ilya Shapiro writes in, The Obamacare “Tax” That Chief Justice Roberts Invented Is Still Unconstitutional,

Two years ago, Chief Justice John Roberts changed the Affordable Care Act’s individual mandate into a tax and thus rescued President Obama’s signature legislation.

Interestingly, according to the Origination Clause in the US Constitution, all money bills are supposed to originate in the House of Representatives.  The bill in question began in the Senate.  When Robert’s court determined it was a tax, it should have been deemed unconstitutional, yet it was left standing. Here is why.

Taxes that are “analogous to fines” are exempt from the clause’s requirements, in that they enforce compliance with a law passed under one of Congress’s other enumerated powers—not the taxing power—but John Roberts foreclosed that interpretive option here.

The bill is also an attack on the 9th Amendment of the Constitution, which guarantees people any rights not specifically listed in the Bill of Rights.  The insurance in question is overpriced and low socio-economic status citizens who qualify will receive subsidies to make it more affordable. Progressive taxes penalize those whose tax dollars provide this entitlement yet do not benefit from it. In addition, the law penalizes those who choose not to purchase insurance.

The constitution should not be transgressed because we are a rule of law, not of men. We are not a democracy; we are a constitutional-republic.    Yet most citizens in this country think the words democracy and republic are interchangeable. The Framers agreed with Aristotle who equated democracy with mob rule and considered it a perversion of constitutional government.

The 10th Amendment is being disregarded by the federal government. The Supreme Court is not interpreting the law but crafting language for the law and the Legislative Branch seems to be yielding its power to the Judicial Branch. However, the people are still sovereign in this nation.  What can the people do? For the long term, only representatives who understand and uphold the rule of law should be eligible to hold office. All citizens must understand the rule of law. In the short term, those holding office must consider removing judges who are not exhibiting good behavior, i.e. legislating from the bench.  If they are unwilling to do their job, this must become an election issue. Our freedom is at stake.

Nancy Salvato’s education career includes teaching students from pre-k to graduate school.  She has also worked as an administrator in higher education. Her private sector efforts focus on the advancement of constitutional literacy. She attended the National Endowment for the Humanity’s National Academy for Civics & Government, and is the author of “Keeping a Republic: An Argument for Sovereignty.”

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