SCOTUS undermines the Constitution and damages itself 2

The Supreme Court’s decision that upholds the Affordable Care Act undermines the Supreme Court itself.

George Will explains why this is the case. He writes at the Washington Post:

Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. …

The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.

The decision … resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.

Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting”.  That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating”. … [His decision will] empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. Exercising judicial discretion in the name of deference, Roberts enlarges executive discretion. He does so by validating what the IRS did when it ignored the ACA’s text in order to disburse billions of dollars of subsidies through federal exchanges not established by the states. …

Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress.

Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution“.

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.

Roberts says “we must respect the role of the Legislature” but “a fair reading of legislation demands a fair understanding of the legislative plan”. However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions.

By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.


Posted under US Constitution by Jillian Becker on Friday, June 26, 2015

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This post has 2 comments.

  • Azgael

    If America had any party to defend freedom they would abolish the current SCOTUS, arrest the judges and send them to prison for life and restore the SCOTUS to what is was originally meant for, however since there is only 1 political party in the USA, the USA has the founders is officially dead.
    America is no longer the land of the free home of the brave..time to remove those words from the national anthem and replace them with land of the slaves home of the cowards.
    The 2nd amendment was meant for exactly what is happening now but Americans have become too chicken shit to fight for freedom or for anything good. the revolutionary soldier put and gave everything they had for freedom, but todays American are too cowardly, too scared and too wimpy to do the same, calling themselves American is an insult and a disgrace to those that gave everything for freedom in the revolutionary war.

  • liz

    What a blatant misinterpretation by Roberts, even after Gruber, the ACA’s main architect, admitted that it was written that way on purpose!
    So if you’re a progressive, you don’t have to worry about suffering any consequences for whatever you do – if there’s a problem, your buddies on the Supreme Court will take care of it for you! And most likely the legislature will give it a pass, too.
    The concept of “checks and balances” has become nothing more than a worn out joke.