The Patriot Post® · Will SCOTUS Save ObamaCare From Itself?

As headlines tuned to her majesty’s secret email servers and the Senate’s failure to override Barack Obama’s Keystone veto, the Supreme Court Wednesday considered oral arguments in a case that could potentially unravel the disaster known as the Affordable Care Act, or ObamaCare.

The case, King v. Burwell, challenges the legality of federal health insurance subsidies for individuals in states that have not set up health insurance exchanges. It’s a case built on solid ground. The law specifically declares – nine times to be exact – that subsidies are available only through exchanges “established by the state.” Yet 36 states opted not to establish an exchange or have discontinued their exchange. So, the IRS issued regulations declaring subsidies are available in these states, in direct violation of the wording in the ACA.

Solicitor General Donald Verrilli Jr., who argued on behalf of the administration, said interpreting the law as the plaintiffs argue would “revoke the administration’s promise” to give Americans affordable health care and noted, “That cannot be the statute Congress intended.”

Barack Obama didn’t worry himself with revoking his promises about keeping insurance plans or doctors. Why worry about subsidies?

Furthermore, now-disgraced ObamaCare architect Jonathan Gruber disagrees. He famously said in 2012, “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.” Of course, what truly matters is not what Gruber or Verrilli believe but what the law says.

As Justice Antonin Scalia noted, “It may not be the statute Congress intended, but it may be the statute Congress wrote.”

The decision will likely hinge on the votes of Chief Justice John Roberts and Justice Anthony Kennedy. Justice Roberts said very little during arguments and gave virtually no indication of how he would vote. But his was the tiebreaking vote upholding ObamaCare’s individual mandate in 2012, and he rewrote the law to do so – all in some sort of effort to protect the Court from appearing “political.”

Unlike Roberts, Kennedy was more vocal Wednesday, and his questions may hint at sympathy for the administration’s position. For example, he said the plaintiffs’ argument – that the law requires states to create an exchange as a condition for receiving tax credits – could raise “a serious constitutional question,” as it would mean the law tells states, “Either you create your own exchange, or send your insurance market into a death spiral.” In other words, the law would challenge state sovereignty through federal coercion.

Yes, that’s exactly what Democrats intended.

Ironically, the constitutional question is one the administration is trying to use in its favor. Knowing Kennedy’s strong support for constitutional federalism, Verrilli actually claimed, “Our reading is the pro-federalism ruling.”

For the administration to trample the Constitution underfoot for six years and then raise it as a banner is disingenuous and outrageous, but savvy. Verrilli hopes to convince Kennedy that the administration is not challenging state sovereignty; hence, the subsidies could not be contingent on states setting up their own exchanges. The administration is ridiculously asserting Kennedy would betray his federalist inclinations if he supports an interpretation of the law that could be seen as coercing states.

Of course, such coercion is hardly new; the federal government regularly uses coercion to implement federal policy throughout the states. Just think of Medicaid, education regulations, and so on.

Beyond questions of federalism, the true issue here is Rule of Law. As John Daniel Davidson, director of the Center for Health Care Policy for the Texas Public Policy Foundation, notes, “The only question that matters in King is whether the administration used the IRS to rewrite a law Congress passed.”

For a president so at ease with overriding Congress, Obama is surprisingly averse to admit he did just that with his own legislation. With Congress unwilling to reign in a lawless executive, however, the Court will now decide whether law has any meaning or if, to paraphrase former Chief Justice Charles Evan Hughes, it means only what the judges say it means.