On days like today, I wonder what was in the manila envelope some “security” firm personnel handed to John Roberts. Was it photographic evidence of an affair? Was it a copy of the trial record on which the discrepancy was circled which led to the proof that Roberts murdered somebody? Was it a record of his having been in a rehab center for cocaine addiction under a fake name?*
I have to believe that blackmail is involved, because the alternatives make no sense. John Roberts has gone out of his way to support Obamacare, either pretending he can’t read or indulging in some Post-modern school of literary criticism where words have only the meaning we ascribe to them at the moment. The first time he supported Obamacare, the states’ argument was that the federal government had no constitutional power to fine people for not purchasing a product. The Obama administration argued that it did, emphasizing in oral arguments that the penalty for not purchasing health insurance is a fine and not a tax.
Roberts knew that fining people for not purchasing something that is not even alluded to in the Constitution is blatantly unconstitutional. What he did to get around that was to call the penalty for not purchasing health insurance a tax.
Well, that makes the situation so much better. Fines are now taxes. I guess that I went to the courthouse to pay my speeding tax. Corporations that commit federal no-no’s suddenly have to pay enormous federal taxes.
Even more special is that Congress can now require us to do anything as long as they “tax” us for not doing it. This is an expansion of the already expansive taxing powers of the federal government. In 1934, Secretary of Labor Frances Perkins was concerned that the proposed Social Security Act had no constitutional basis, which it didn’t. At a tea party, Supreme Court Justice Harlan Stone in 1934 told her “The taxing power of the Federal Government, my dear; the taxing power is sufficient for everything you want and need.” Apparently because the federal government has the power to tax, Congress can levy any tax they want on anything we do and, now, anything we don’t do. That’s a new definition of freedom.
Apparently, John Roberts and the rest of the majority didn’t think that the power to tax was flexible enough. Constitutionally, Congress, the elected representatives of the people, is also known as the legislative branch because they are entrusted with making law. The President and his administration are also known as the executive branch because their job is to execute, i.e. put into practice and enforce, the laws that Congress writes. That’s known as the separation of powers. Congress has the power to legislate; the President has the power to execute.
SCOTUS’s decision in King v. Burwell ends all those inconvenient constitutional formalities. The ironically named Affordable Care Act as Congress wrote it reads that federal subsidies to purchase health insurance are available to people who purchase their insurance in public exchanges “established by the State.” About 14(?) states established state exchanges for purchasing health insurance. The other 36 states chose not to, so their residents had to purchase health insurance through the federal exchange.
It would seem to me that, based on the wording of the law, only people who purchased their insurance through state exchanges were eligible for federal subsidies. I claim some expertise on this subject since I have an English degree and I taught reading, writing, and grammar for almost 24 years. Unless we’re purposefully using figurative language, words mean what they mean. They have denotations—dictionary definitions. It is this agreement about what words mean that allows us to communicate clearly. When Congress writes a law, it is communicating to the President what it is directing him to do, which he is constitutionally obligated to do.
President Obama and his Administration don’t agree with this principle. They believe that they can change laws when it suits them. In 2014, mandates to employers of 50-99 employees and of 100+ employees to provide health insurance for most or all employees were supposed to go in effect. The Administration, without any congressional authorization, decided to delay the mandates until 2015/2016. The ACA, as written, provides health insurance subsidies only to those who purchase their insurance exchanges “established by the State.” The Administration decided, through the IRS, to give subsidies to people who purchased their health insurance through the federal exchange contrary to the law that Congress passed.
In its decision on King v. Burwell, the Supreme Court essentially codified the Administration’s ability to “interpret” (read as “change”) a law any way it wants regardless of what the law plainly states. No matter what law Congress passes and the President signs, if he doesn’t agree with it or find part of it convenient, he can change it.
How are we supposed to live in a country where the laws as written can be changed arbitrarily by the President or the Supreme Court. It’s like playing Calvinball from Calvin and Hobbes. For those who don’t know or remember, Calvin and Hobbes would play a game and constantly change the rules based on what would give one advantage over the other at the moment.
The Court has just expanded the President’s powers exponentially by removing the separation of powers. The President can now rewrite legislation as it suits him. He can ignore the plain will of the Congress—the people’s representatives.
This process of expanding executive powers is similar to what happened to the Roman Republic. At the beginning of the Republic, the Senate wrote the laws, and the Consuls (chief executives) carried them out. Over several decades, the consuls gained more and more dictatorial powers. Augustus Caesar recognized this reality and took upon himself the title “emperor.” Rome became a republic in name only. The Senate still met, but their deliberations meant little.
As I was writing this, the news broke about the Supreme Court’s decision on gay marriage. They overruled the voters of 30 states who voted for marriage amendments based on a new constitutional right they just found in the Constitution.
Well. It seems we don’t need Congress or state governments anymore. The way matters are proceeding, we’ll just look to the President and the Supreme Court to tell us what to do.
*I am not accusing John Roberts of anything. I am speaking hyperbolically.