The 381,517 words of the President’s health care law may be a lot for Nancy Pelosi (D-Calif.) to read, but the Supreme Court should have had no trouble with four. At the heart of the King v. Burwell ObamaCare case was one simple question: Did the words “established by the state” actually mean “established by the state?” “You would think the answer would be obvious,” Justice Antonin Scalia said, “so obvious there would hardly be a need for the Supreme Court to hear a case about it.”
Unfortunately for Americans, nothing is obvious in Washington anymore — not even the plain language of the written law. In one breathtaking move, six justices chose to ignore those four words — and with it, Congress’s clear intent on the President’s health care exchange. Together, they gave the White House another license for lawlessness, costing Americans billions of dollars in illegal subsidies in the process.
Back in 2010, when the President hatched his idea for health care, he knew that many people wouldn’t buy his insurance if they had to pay full price. So, he created a system for financial aid, which offset the cost for people who made less than a certain income. Those subsidies, however, were supposed to be an incentive for states to set up their own health care exchange. When 34 didn’t, the administration panicked. They knew ObamaCare would collapse without those benefits bringing more people into the system. So the Obama IRS did what it does best: pretended those four words (like Lois Lerner’s emails) didn’t exist.
By 2012, the agency was pumping out subsidies to Americans everywhere — not just the ones in exchanges “established by the state.” As a result, 87% the people on ObamaCare are getting some kind of health care handout “partly or wholly at someone else’s expense,” the Wall Street Journal explained. “…The annual subsidy amounts to $3,312 per recipient. Which is excellent if you’re one of the recipients.”
So far, the IRS’s free-for-all has cost taxpayers an extra $30 billion. And the Supreme Court, which had an opportunity to stop the bleeding, didn’t. Through “interpretive jiggery-pokery,” as Scalia called it, Chief Justice John Roberts concluded that “the phrase [‘established by the state’] may be limited in its reach to State Exchanges,” but claimed “it is also possible that the phrase refers to all Exchanges — both State and Federal.”
Once again, the Court has subjected a law passed by Congress to linguistic gymnastics to salvage its faltering performance. Surely, Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” But if the law collapsed because of how it was written, that’s Congress’s problem. It was neither the IRS’s role — nor the Court’s — to rewrite and rescue it. “I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections,” Justice Scalia argued along with colleagues Samuel Alito and Clarence Thomas. “Context always matters. Let us not forget, however, whycontext matters: It is a tool for understanding the terms ofthe law, not an excuse for rewriting them.”
As House Majority Leader Kevin McCarthy (R-Calif.) said earlier today, “The only thing that is more disappointingly flawed than today’s decision on what ObamaCare actually meant is ObamaCare itself.” If the Court won’t address the plain language of the law, Congress must. Fortunately, there are still hundreds of conservatives on Capitol Hill who are determined to undo ObamaCare’s freedom-crushing, conscience-violating, abortion-funding reality. If anything, this will ignite an even bigger fire.
“The politicians who forced ObamaCare on the American people now have a choice,” Senate Majority Leader Mitch McConnell (R-Ky.) told reporters, “crow about Obamacare’s latest wobble towards the edge, or work with us to address the ongoing negative impact of a 2,000-page law that continues to make life miserable for too many of the same people it purported to help.”
In the meantime, Justice Scalia was right — words do matter. And the one that should be on every conservative’s lips is simple: Repeal.
Tony Perkins heads the Family Research Council. This article is excerpted from the Washington Update that he compiles for the FRC.