by Cato 11/20/14
This post gets to the core of the ObamaCare subsidy question currently before the SCOTUS. I wrote several times in the first SCOTUS go-round on the mandate about Roberts’ decision, fascinated by what seemed to me then and what seems to me even more now the brilliance of his principle not to ”protect the people from the consequences of their political choices”.
Had Roberts ruled otherwise ObamaCare would have been stalled, yes. But then the American electorate would never have “seen what’s in it”, in the immortal words of Nancy Pelosi, The Dems would have claimed the law was struck down on a technicality … which would have been true … and the illusion of the efficacy of central planning for the healthcare industry would never have been destroyed. Nothing, so goes an old saw, kills a bad law faster than fully enforcing it. ObamaCare is a textbook example of this.
Americans are not policy wonks. We are tinkerers and inventors. We learn by doing; are educated by experience. So we have done and so we have been educated by the experience of ObamaCare … and all the better are we for it. Roberts was castigated by short-sighted conservatives when that first ruling came down. As noted in this post below on the current issue before SCOTUS on subsidies, many ideologically-blinded conservatives still haven’t caught up with reality; still strafe Roberts at every opportunity.
If Roberts adheres to his guiding principle so succinctly stated in that quote above he will rule to sustain the letter of the ACA; he will enforce the law literally to the letter, thus denying the federal government the executive and regulatory authority to arbitrarily reverse the subsidy clause as written by Congress. Specifically and technically, he will refuse the IRS the self-granted privilege of accepting subsidies on 1040s from taxpayers in the 36 states where the law does not authorize their acceptance, thereby once again exposing the people to the consequences of their political choices.
Scanlon, below, ties himself in a rhetorical knot trying to avoid the obviousness of my argument. I find his thesis tortured and weak; a foregone conclusion searching for a rationale and devoid of experiential validity.
This ruling will be 5-4 one way or the other, depending on which way Kennedy votes. Bader-Ginsburg, Kagan, Breyer, and Sotomayor will most likely, and happily, toss written law overboard once again in favor of ‘intensions’. Roberts, Alito, Scalia and Thomas will vote to uphold the law precisely as written. The betting is that Kennedy, who has been noticeably vexed by bureaucratic over-reach in other decisions, goes with the conservatives. There is, however, a small chance Breyer can’t bring himself to empower the bureaucracy and the Oval Office with the ability to rewrite laws by edict, seeing this as beyond reasonable ‘regulatory discretion’. So 6-3 isn’t impossible. But we shall see.
Also see: Roberts, Obamacare, and Consequences by Joel Scanlon
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