Friday, February 23 , 2018, 12:40 am | Fair 49º

 
 
 
 

David Harsanyi: Supreme Court vs. Rule of Law on Affordable Care Act

Here is John Roberts, chief oracle of the United States of America, from Thursday's King v. Burwell decision:

"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."

What the statement illustrates is that for Roberts, the law is a subordinate concern.

I know, I know, the Affordable Care Act is moral and decent and that's all that matters. Liberals demand we govern through empathy-based jurisprudence rather than anything resembling the antiquated tenants of founding principles. If you care about the latter more than you do the former, the fact that Supreme Court justices are aping the consequentialist arguments of the left and then working backward to make their legal justifications is probably the worst sign for checks and balances yet.

We're going to be inundated with legal interpretations over the next few days. But imagine for a moment if a Supreme Court justice argued that the Defense of Marriage Act was passed to improve marriage rather than destroy it so we must focus on the former rather than the latter and uphold any retroactive provisions the Bush administration cooked up to make that law work. Or imagine the same for any legislation you disagree with.

Let's concede to Roberts that the intention of every politician is to improve on things. Republicans believe that further nationalizing health insurance is a bad idea and makes markets less competitive and more expensive. By overturning the law, they want to improve health insurance markets, as well. That's why we have legislatures, to debate these points of view and then pass bills. That legislation codifies what a majority can agree on. And we have courts to judge the constitutionality of laws, not to bore into the souls of politicians to decipher their true intent or find justifications to rubber-stamp "democracy" — as Roberts puts it.

But in every case, it seems, we must respect the role of the legislature and not undo what it has done. A fair reading of the legislation demands a fair reading of the legislative plan.

It was Roberts who helped rewrite Obamacare the first time around, making a penalty into a tax and, for the first time in history, allowing American government to coerce every citizen into buying a product from a private company as part of its power to regulate commerce.

Roberts, abandoning law, laments that Obamacare was drafted in a haphazard and vague way, right before ruling that laws can be implemented in any way the executive branch sees fit, as long as judges deem its intentions righteous.

Once we pass massive pieces of legislation that effectively hand entire industries to regulatory agencies, we are allowing the executive branch to govern in any way it sees fit. That said, it's doubtful that SCOTUS would allow the same rationalizations used for King v. Burwell to be employed for any legislation it found distasteful. Though Republican presidents keep nominating judges who disappoint conservatives, you can be assured that Hillary Clinton would not disappoint liberals with her picks.

But on the political side, this ruling means we can no longer rely on government institutions to check one another or themselves. Conservatives — or whatever party is in the minority — have to continue to be the check. Any kind of reform should be opposed because any kind of reform, no matter how narrow the focus theoretically is, will be an opportunity for boundless revision and scope.

All a political party needs to do is cobble together a temporary majority, push through legislation that expands federal power and then find some clairvoyant judges dedicated to empathy rather than their oath. All of this is fine, according to the Supreme Court, as long as politicians had good intentions.

David Harsanyi is a senior editor at The Federalist. Click here for more information, or click here to contact him, follow him on Twitter: @davidharsanyi, or click here to read previous columns. The opinions expressed are his own.

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