Juridical Newspeak

War is Peace
Freedom is Slavery
Ignorance is Strength
State is Federal

Yesterday’s King v. Burwell decision should disabuse everyone of the notion that this nation is still a Constitutional Republic. It should put to rest any illusions that the Supreme Court exists as a co-equal check upon the powers of the legislative and executive branches, designed to safeguard the liberties of the body politic. It is a diseased, politicized, subservient, and subordinate branch, determined to effectuate its agenda through judicial fiat. Certain justices have no concern for determining the constitutionality of questions before the Court; rather, they are determined to circumvent the democratic process and think nothing of imposing their will autocratically.

The constitutional question placed before the Court was this:

Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

For those unfamiliar, the Patient Protection and Affordable Care Act (ACA, Obamacare if you’re nasty) is a health care mandate requiring that all Americans obtain health insurance of some form or another, or be slapped with a penalty for failure to comply. The statute was hurriedly and clandestinely drafted, then forced through the legislature with most of its provisions kept secret. It was also poorly drafted, which opened the statute up to several constitutional challenges. It was challenged five years ago on the grounds that the penalty provision of the statute was unconstitutional as Congress could not use its power to penalize Americans for failure to purchase a good, and that statute constituted a misapplication of the Congress’ Commerce power.

The Supreme Court saved the statute from itself 5-4 in 2012, ruling that the penalty provision was indeed a tax and thus constitutional (even though Obama and many others associated with the administration regularly and explicitly denied that the provision constituted a “tax”). The Court however abjured that Congress’ Commerce powers had any application to the constitutionality of the mandate.

King v. Burwell presented a different objection to the mandate, namely that health insurance purchased through the federal exchanges set up once state governments refused to set up parallel exchanges were ineligible for tax credits because they were not established in exchanges “established by the State,” as per the legislation. The petitioners were correct, as the plain meaning of the statute, on its face, is that the states would be responsible for establishing health insurance exchanges and the IRS would then provide tax credits. There was no provision in the statute permitting credits to be issued for federally purchased plans. This was by design: Congress intended for the states to be equal partners in the scheme. A plain meaning interpretation of the statute would have invalidated the statute and sent it back to Congress for reconsideration and redrafting. This is as it should be, in a functional, tripartite government in which the constituent parts act as checks upon each others’ powers.

But we do not have a functional, tripartite, coequal government structure any longer. Realistically speaking, we have not had one since the New Deal. So now we have three branches effectively functioning as one, colluding to baptize each other’s worst and most unconstitutional actions for the sake of expediency. We have an executive that assumes the power of the legislature, a legislature that relies on the judiciary to save it from its own incompetence, and a judiciary that is more than willing to abrogate the Constitution to bring to life its big government, federalized vision of America through the extraconstitutional recognition of unconstitutional acts.

The most remarkable aspect of the Burwell case is the Court’s willingness to ignore the complete lack of ambiguity in the statute’s language. “Exchanges established by the State” means precisely what it says: health insurance exchanges set up and managed by the states, at the state level. There is no need to look any further than at the words in the sentence. Rather, the majority in the decision offers up a tortured rationale about contextual meaning and Congressional intent, completely ignoring the fact that the first rule of statutory interpretation is that the Court must give effect to the “plain meaning of a statute.” If the statute says “state exchange purchases receive tax credits,” but federal exchange purchases are being granted tax credits, then the tax credit program should fail, be struck down as unconstitutional, and the law redrafted, as the statute makes no provision for credits to be granted to federal exchange purchases. However, the Court would like us to believe that “state” can mean “federal”…if it thinks that’s generally what Congress meant and if it’s a convenient way to save the law. Notwithstanding the fact that the meaning of “state” is clear to everyone who’s willing to be intellectually honest. Words mean what those in power say they mean. Where have we seen this theme before?

This decision means that the Court thinks words can mean whatever it wants it to mean in the moment. It also means that the Court sees no meaningful distinction between the state and the federal. I’m not sure which bodes worse.

So we must ask ourselves: what are the Court’s limiting principles? If unambiguous words can be taken to mean the opposite of their plain meaning, what is to stop the Court from interpreting any statute litigated before it in any way it likes? The Court has liberated itself from textual limits, so what exists to keep it honest? What will stop the justices from determining issues along blatantly partisan lines, looking over and under the basic words of statutes to justify their fugazi adjudications? This clearly telegraphs the Orwellian reality of our times: the government can ascribe any meaning to any concept and any word that it deems acceptable and/or necessary, logic and truth be damned. It also telegraphs that we can’t rely on law to save us from tyranny. The Supreme Court is no bulwark against government overreach, it is an accomplice in the government’s crimes. It aids and abets at every opportunity.

When meaning becomes malleable, protections become meaningless.

Welcome to the United States of Oceania. These are doubleplusgood times.


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