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"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that’s all."
― Lewis Carroll, Through the Looking Glass
Last week's ruling by the Supreme Court on Obamacare shows that, like Humpty Dumpty, a majority of the justices are off the wall. With their recent ruling, the rule of law is smashed to bits.
What is a law but words? The only way that you and I can clearly understand what we're supposed to do and not do is by being told. That requires words, but more specifically, a common understanding of what those words mean.
If I suddenly decide that "Yes" means "No" or vice versa, we aren't going to be able to communicate effectively, at least until you realize my head is screwed on backwards.
What Justice Dumpty is decreeing is even worse: not merely that Yes means No, but that the meaning can flip-flop back and forth at will!
Let's briefly review what the argument was about. When Obamacare was originally written, it was intended for each state to run its own marketplace, or healthcare exchange. As has been standard practice for a century, the law bribed the states to invest the money and political energy in creating the exchanges and strongarming insurance companies into them: if a state created an exchange, its poor people would get "free" Federal money to help them buy insurance on it. If not, then not.
MIT professor Jonathan Gruber, in addition to crediting the stupidity of the American voter, argued far and wide for the proper way to bribe the states. He was involved in Romneycare which served as an early template; he's consulted with all the major Democrat presidential campaigns for years. He was a technical consultant to Obama for the express purpose of crafting Obamacare, so much so that he's often been called its architect. So he knows better than anyone else what the words of the law were supposed to mean.
What does he say about it?
Questioner: You mentioned the health-information [sic] Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.
Gruber: Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this. [emphasis added]
So the guy who wrote Obamacare says that it was set up that way on purpose, explicitly, with malice aforethought: If your state doesn't set up an Obamacare exchange, no soup for you! Or at least, no subsidies anyway. The whole point was to force local politicians to kiss the ring of Obamacare.
Of course, it turned out that most states didn't knuckle under and never bothered with exchanges; several tried and gave up after wasting billions of taxpayer dollars on bad software. Mr. Obama couldn't bear to see his signature law collapse, and so the IRS decided to blithely ignore the law forbidding subsidies from going to those states. As Democrats do, he simply wrote checks to everyone.
It should be blindingly obvious why so many lawsuits were filed pointing out the obvious illegality of this action: even normal people can understand the concept that government is not supposed to spend money in a way that the law explicitly says it cannot.
If words mean anything at all, whether written or spoken, the Supreme Court should have ruled unanimously that, yes, the law does forbid federal subsidies to be given to people who live in states that didn't set up Obamacare marketplaces. Instead, they did the exact opposite, on the grounds that the consequences of actually following the law would be too inconvenient.
Is Obamacare actually good public policy? Hardly. Is it fair? Of course not. Is it smart law? No, it's a horrible, ugly, wreched mess.
But it is not the job of the Supreme Court to fix Congress' stupidities.
The way a democracy is supposed to work, is, when our representatives do something stupid, the voters feel the pain, get angry, and vote the bums out. That's the only way we can even hope for any improvement.
When the Supreme Court takes on the role of deus ex machina, waving a wand and magically straightening out crooked, twisted laws, this essential feedback mechanism of liberty is short-circuited.
That's not the worst of it. If the Supreme Court can, not just strike down, but actually rewrite wholesale the laws that come before them, who is really making laws? Our elected representatives write laws and pass them, then they get overhauled - not merely struck down, but actually rewritten - by nine unelected old folks who can't be fired no matter how wrong-headed their decisions. Is that really the sort of country America is supposed to be?
Well, it's the sort of country America is, and it seems that most Americans are pretty content with it. After all, everyone gets to keep their subsidies if not their doctors or their insurance plan.
We've sold our birthright as Americans in exchange for what? A right to stand in line at the doctor's office and pay more than we did before. Good luck with that - and thanks loads, Chief "Justice" Roberts!
[Editor's Note: This article was written prior to the Supreme Court's ruling on homosexual unions. We will address that pungent issue in another article.]