This morning, the U.S. Supreme Court issued its opinion in the King v. Burwell case. At issue were the subsidies for federal health insurance exchanges in states that had not set up their own. In a 6-3 decision upholding the law, the Court ruled that when Congress referenced an exchange “established by the State,” they actually meant “established by the State or the Federal Government.”
Predictably, the dissent—issued by Justice Scalia—pointed out the absurdity of this approach. “Words no longer have meaning,” he wrote, “if an Exchange that is not established by a State is ‘established by the State.'”
But these linguistic gymnastics are part and parcel of the nation’s highest court; calling a “penalty” a tax, as in another Obamacare suit, or claiming that commerce among the several states means any transaction—or potential transaction—by any single individual anywhere, is a drop in the ocean of awful and expansive jurisprudence that has, in its totality, given to Congress a default green light—a presumption of constitutionality for whatever it wants to do.
The degree to which the Court has become disconnected from the founding document it is supposed to interpret and uphold is especially evident in this King opinion, in which the majority opinion says this:
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
This deference to Congress is predicated on the Court’s conclusion that the United States of America is a “democracy”—a word not found anywhere in the founding document that created the nation. Surely these educated lawyers are aware of this fact, and further, the active opposition the document’s framers had toward democracy. Summarizing them all, here is James Madison writing in the Federalist, encouraging passage of the U.S. Constitution:
Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths… A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.
The Court, through decades of expansive and deferential interpretations—tortured readings so as to “take care not to undo what [Congress] has done”—has reshaped the nation, ignored the document it claims to uphold, and substituted for the supreme law of the land its own whims and ends. Thus we read, in Scalia’s dissent in the King case, that
the discouraging truth [is] that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
