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.

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

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Democratic elites torn between their principles and their pocketbooks 3

Wealthy New York Democrats who adored the idea of Obamacare, are shocked to find their own health care arrangements are adversely affected by it.

This is from PowerLine, by Steven Hayward:

Many in New York’s professional and cultural elite have long supported President Obama’s health care plan. But now, to their surprise, thousands of writers, opera singers, music teachers, photographers, doctors, lawyers and others are learning that their health insurance plans are being canceled and they may have to pay more to get comparable coverage, if they can find it.

They are part of an unusual, informal health insurance system that has developed in New York, in which independent practitioners were able to get lower insurance rates through group plans, typically set up by their professional associations or chambers of commerce. That allowed them to avoid the sky-high rates in New York’s individual insurance market, historically among the most expensive in the country.

But under the Affordable Care Act, they will be treated as individuals, responsible for their own insurance policies. For many of them, that is likely to mean they will no longer have access to a wide network of doctors and a range of plans tailored to their needs. And many of them are finding that if they want to keep their premiums from rising, they will have to accept higher deductible and co-pay costs or inferior coverage.

In pondering the case of the overwhelmingly pro-Obama New York “artistic and professional community”, I’m reminded of H.L. Mencken’s remark that “Democracy is the theory that the common people know what they want—and deserve to get it good and hard.”

Oh, and let’s not overlook Obama-loving California either:

An estimated seven out of every 10 physicians in deep-blue California are rebelling against the state’s Obamacare health insurance exchange and won’t participate, the head of the state’s largest medical association said.

It’s epic fail all the way down.

And this is from PJMedia, by Michael Walsh:

Has there been a more heart-rending story recently than this piece from theNew York Times? …

It carries the news of how flabbergasted “New York’s professional and cultural elite” are at finding that Obamacare will cost them dear, and includes “quotes from rock-ribbed liberals who are suddenly rethinking their allegiance to Leftism now that it has real-world consequences”.

“I couldn’t sleep because of it,” said Barbara Meinwald, a solo practitioner lawyer in Manhattan. …

It is not lost on many of the professionals that they are exactly the sort of people — liberal, concerned with social justice — who supported the Obama health plan in the first place. Ms. Meinwald, the lawyer, said she was a lifelong Democrat who still supported better health care for all, but had she known what was in store for her, she would have voted for Mitt Romney.

It is an uncomfortable position for many members of the creative classes to be in.

“We are the Obama people,” said Camille Sweeney, a New York writer and member of the Authors Guild. Her insurance is being canceled, and she is dismayed that neither her pediatrician nor her general practitioner appears to be on the exchange plans. What to do has become a hot topic on Facebook and at dinner parties frequented by her fellow writers and artists.

“I’m for it,” she said. “But what is the reality of it?”

She means she was for it, but now resents “the reality of it”.

The reality of it is that … one can only postpone the Consequences of No Consequences for so long before ugly reality finally arrives. This puts the Left in the terrible position of being forced to choose between its principles and its pocketbook, a life situation for which they are almost wholly unprepared.

It had to come eventually. Reality, whether acknowledged or not, accrues its consequences. Which must affect everyone. Even New York lefty intellectuals.

Let us not pity them too much. Rather, we confidently assure our readers that an outburst of Schadenfreude on hearing this news would not be in bad taste.