The logic of the Supreme Court ruling upholding the latest challenge to ObamaCare is simple: “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them,” writes Chief Justice John Roberts in his 6-3 majority decision in the case of King v. Burwell. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
This is obviously true — and patently ridiculous.
It’s true because of course the goal was to improve markets. It’s absurd because government policies often have the opposite effect of what is intended — and the moral and legal onus in such situations falls on those who advanced the policies in the first place, not those who attempt to undo them.
The ludicrousness of Roberts’ logic can be seen in this extreme thought experiment: Policies like Communism, National Socialism and fascism came into political being because their expostulators and advancers thought they were going to improve humankind.
It goes without saying that their theoretically good intentions should have nothing to do with how we judge the execution of the policies enacted in their name.
Or, to look at it another way, was George Bush right to invade Iraq simply because he meant well?
The core of the case in King v. Burwell comes from the language of the ObamaCare law itself, and has to do with whether the federal government can provide certain tax credits to purchasers of ObamaCare when they live in states that refused to set up so-called “exchanges.”
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.’”
He therefore must spend pages and pages explaining that the language doesn’t say what it says. Or that it doesn’t mean what it says. Or that it wasn’t supposed to mean what it was saying. Or even if it means what it says, that doesn’t matter.
You see, Roberts writes, “If the statutory language is plain, we must enforce it according to its terms. But oftentimes” — and here he quotes an earlier Supreme Court decision — “the ‘meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.’”
The logical ludicrousness with this is also plain.
If the “context” of the law is that the law should be good and do wonderful things, and that all the sub-statutes spelled out in the overall statute should therefore be imbued with the same wonderfulness as the overall statute, then any language inside the law that limits its reach can be deemed problematic and effectively ignored.
This is the reason Justice Antonin Scalia, in his withering dissent, refers to the Roberts opinion as “applesauce” — surely because decorum prevented him from calling it b—ls—t.
As Scalia says, Roberts and the five other justices who agree with him say “that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
Scalia is not offering a political reading of the decision.
In fact, as politics goes, Republicans and conservatives are probably better off not having to cope with the removal of the subsidies from the federal exchanges a year before the presidential election. His disgust is purely with Roberts’ logic, which is twisted beyond all intellectual salvation.
But then, Roberts is an old hand at writing absurd decisions on ObamaCare. Recall that in his tortured effort to uphold the law against the large constitutional challenge against it in 2012, he was compelled to say in one place that it wasn’t a tax (page 12) and in another that it was a tax (page 35).
There’s a term for arguments advanced with knowing falsehood simply to win the day.
It’s casuistry. Perhaps we should rename John Roberts the chief casuist of the United States.