Among the issues most commonly discussed are individuality, the rights of the individual, the limits of legitimate government, morality, history, economics, government policy, science, business, education, health care, energy, and man-made global warming evaluations. My posts are aimed at thinking, intelligent individuals, whose comments are very welcome.

19 July 2015

Ambiguity, Context, Legislative Deference, and State Emasculation in King v. Burwell ObamaCare Decision

This is my belated rational analysis of the Supreme Court's 6-3 decision to approve federal tax subsidies for health insurance exchanges mandated under ObamaCare whether they were established by the state or not in the King v. Burwell case.  I am not a lawyer.  I am simply a man who regards the protection of individual rights as the sole legitimate role of government, as stated wonderfully in the Declaration of Independence.  A very limited government consistent with that goal of legitimate government was mandated by the People in the Constitution of the United States of America.

The first Supreme Court decision on the infamously falsely named Patient Protection and Affordable Care Act was NFIB v. Sebelius.  The NFIB challenged the use of a fine or penalty fee to force individuals to buy only such particular health insurance plans as were approved by the federal government.  Congress had insisted at the time of passage of this bill that the individual penalty fee was not a tax.  The majority 5-4 decision that upheld the constitutionality of the individual mandate was based on the bizarre claim that Congress had the power to tax.  Since the penalty fee was really a tax and was not a penalty fee according to the court decision, the individual mandate was within the powers of Congress to impose.

To this day, the Supreme Court designated tax is still called a penalty fee, a fine, and a shared responsibility payment by the federal government, rather than the tax that was falsely ruled constitutional by dropping the context of the taxing power in the Constitution. The power to tax was exlusively for use in exercising the very limited and strictly enumerated powers that promptly follow the power to tax in the structure of the text of the Constitution.  If the federal government were allowed to do anything it wants under the power to tax, there was no need to enumerate its limited powers to provide for the national defense, handle foreign affairs, establish a federal court system and a postal system, establish post roads, bankruptcy law, patent law, naturalization law, and uniform weights and measures.  Note the lack of any authority to establish health care or health insurance laws.  Now remember this lack of context in the case of the Supreme Law of the Land as we discuss this King v. Burwell decision which hangs so heavily on what it claims is context.

Basically, the decision concludes that ObamaCare "includes more than a few examples of inartful drafting."  Of course those of us who paid attention to the process by which it "became law" understand that it was slapped together with undue hast, without any attempt to rationally evaluate its effects and self-consistency, and without being read by most of those Democrats who voted for it.  In fact, we are not sure that a single voter actually read it.  But, we do know that a number of those who did thought that only those in states that chose to establish an ObamaCare exchange would be eligible for federal subsidies for health insurance plans on those state exchanges.  This was supposed to help convince the state governments to cooperate with the ObamaCare law or get them in trouble with those who would be deprived of the subsidies.

The context of this history was ignored by the Supreme Court in its decision, but its decision starts with the very political and historical assessment that
The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform.
Indeed, it goes on to discuss a series of state efforts at reform and concludes that it is necessary for a successful health insurance law to provide that:
  1.  It must have guaranteed issue.
  2.  It must have a community rating requirement.
  3.  It must require an individual mandate or impose a tax on non-compliant individuals.
  4.  It must provide subsidies to make the insurance affordable for low income persons.
Deciding what successful health insurance reform is might be a legislative power, if it were even that and it is not, but most certainly is not a power granted to the federal courts.  Nonetheless, this Supreme Court has decided that this is a part of the context which it will apply as a critical element in its argument that ObamaCare is legal.  This is a purely political decision.

The decision claims that there is ambiguity in the oft repeated phrase "an Exchange established by the State under [42 U.S.C. Section 18031]" due to context.  The dissenting opinion disagrees on this.  If the state does not establish an ObamaCare exchange, the Secretary of Health and Human Services is directed to establish "such Exchange."  The word "such" is loaded with the meaning that whether the exchange is established by the state or by the federal government, those exchanges are interchangeable for all purposes of the law.  Now this is a major case of cherry picking a meaning for the word "such" and loading it with massive interpretive import, especially in the context of a bill which "includes more than a few examples of inartful drafting."  That is a form of context-dropping.  The court claims that this is providing context, nonetheless.

There is also a reference that the act provides that tax credits "shall be allowed" for any "applicable taxpayer."  In this case the majority decision chooses to interpret "applicable taxpayer" as one who meets the income requirement but the word applicable does not apply to whether the taxpayer is in a state with an applicable state-established exchange.  Well, who knows what this means?  It is a badly written bill, full of "inartful drafting."

There is also a reference that directs all exchanges to make an effort to inform individuals about the subsidy program.  Politically, this was known to be a part of the effort to bring pressure on states to establish an ObamaCare exchange.  If they did not do so, the federal exchange would broadcast to those who did not get the subsidy what their state had taken from them and put pressure on the state to cooperate with the law to reduce its costs to the federal government by creating and managing the exchange.  It did not work out this way because so many states refused to set up state exchanges that the Obama administration had the IRS rule that subsidies would be available in all states.  This was needed to tamp down the rebellion.

With the claim that there is ambiguity, the court says that the issue is so loaded with "economic and political significance" that Congress could not have intended that the interpretation be provided by the IRS.  So, the Supreme Court concluded that the interpretation should be provided by the Supreme Court with all of its expertise on economic and political issues.  A rational individual would conclude that if this really is ambiguous, then the Supreme Court should defer to Congress and announce that this critical provision in the ObamaCare law is ambiguous and unintelligible.  It should say if Congress wants the federal courts to enforce a health insurance reform law with subsidies, then it is the duty of Congress to eliminate the ambiguity by passing a new law to remove that ambiguity.  It is critical that laws have intelligible meaning.  But no, there is no deference to Congress and the separation of powers, not even in the context of the incredible change in the Congress resulting from the people's fury over the passage of the ObamaCare law.  This court does not want the new representative resulting from democratic choice of the people to have a say in the correction of the faults of the ObamaCare law.  Clearly, the Progressive Elitist view of the Supreme Court is stronger than that of the present Congress, so the decision must stay in the Supreme Court to insure their desired political and economic outcome.

This court ruling has also had the effect of much further reducing the power of state governments.  Their refusal to participate in a federal program which many of them thought correctly was unconstitutional and unworkable was swept aside.  These state governments were not to be allowed to protect their residents from any of the many harms of the rightfully unpopular ObamaCare law.  The Supreme Court ruled that there was to be no opting out of the health insurance reform bill which it had decided was a politically and economically highly desirable reform.

The Supreme Court has once again defied the Constitution, rational law requirements, the democratic expression of the People, and our sovereign individual rights to life, liberty, property, self-ownership, and the pursuit of our happiness.

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