Arnold Ahlert / March 3, 2015

A Democratic Republic Is a Terrible Thing to Lose

Is there anything the Obama administration, Democrats, their media allies and their fellow progressives hate more than the rule of law if that law doesn’t accrue to their benefit? The long knives are out in force right now because on Wednesday, the Supreme Court is to begin hearing oral arguments in King v. Burwell, challenging a critical aspect ObamaCare. And as American Spectator’s David Catron rightly points out what the Court will ultimately be deciding extends far beyond the healthcare bill. It will be deciding whether we remain a nation of laws, or become a nation of men. The law itself isn’t debatable, and ironically it is former House Speaker Nancy Pelosi’s infamous words that return to haunt the American left. It was Pelosi who insisted Democrats would have to pass ObamaCare before Americans could find out what’s in it. So the law passed and some Americans decided to take up Pelosi’s challenge. What they discovered was states had the option of setting up their own health exchanges, or letting the federal government set them up. They further discovered that premium subsidies for millions of Americans were legally limited to those exchanges “established by the state.” Once again, according to the law itself, those states refusing to set up their own exchanges would not be eligible for those subsidies, totaling more that $25 billion and affecting approximately 8 million Americans in the 34 states that refused to set up those exchanges.

Is there anything the Obama administration, Democrats, their media allies and their fellow progressives hate more than the rule of law if that law doesn’t accrue to their benefit? The long knives are out in force right now because on Wednesday the Supreme Court is to begin hearing oral arguments in King v. Burwell, challenging a critical aspect of ObamaCare. And, as American Spectator’s David Catron rightly points out, what the Court will ultimately be deciding extends far beyond the healthcare bill. It will be deciding whether we remain a nation of laws, or become a nation of men.

The law itself isn’t debatable, and ironically it is former House Speaker Nancy Pelosi’s infamous words that return to haunt the American left. It was Pelosi who insisted Democrats would have to pass ObamaCare before Americans could find out what’s in it. So the law passed and some Americans decided to take up Pelosi’s challenge. What they discovered was states had the option of setting up their own health exchanges, or letting the federal government set them up. They further discovered that premium subsidies for millions of Americans were legally limited to those exchanges “established by the state.” Once again, according to the law itself, those states refusing to set up their own exchanges would not be eligible for those subsidies, totaling more that $25 billion and affecting approximately eight million Americans in the 34 states that refused to set up those exchanges.

Without those taxpayer-supported subsidies, ObamaCare becomes unaffordable, and more than likely collapses in a death spiral as a result – which is precisely why President Obama and the IRS decided to take the law into their own hands and issue subsidies regardless. Not only in defiance of the healthcare law itself, but the Constitution’s separation of powers doctrine: Only Congress has the power to legislate and/or impose such taxes, not Obama and the IRS.

So what is the gist of the American left’s argument? Congress “meant” for every American to have those subsidies available, and if the Supreme Court takes them away we’re going to get very, very angry.

Actually hysterical is more like it. Politico’s Abbe R. Gluck insists the plaintiffs are relying on “a hyper-literal reading of four words out of context.” The Washington Post’s Robert Barnes declares that Chief Justice John G. Roberts Jr.‘s “dream of a nonpartisan Supreme Court” will be “shattered” if the Court rules in favor of that so-called hyper-literal reading. That piece also quotes Washington and Lee University law professor Tim Jost, who declares a ruling in favor of  the plaintiffs "would seriously call into question the legitimacy of the court.“ That tactic was also employed the L.A. Times’ Brianne J. Gorod, who insists the Chief Justice is "too good a lawyer” – to follow the letter of the law.

All of them apparently believe, not unreasonably, that Roberts can be intimidated in the same fashion as he was when he issued a torturous ruling upholding the individual mandate. One that now gives Congress the power to tax Americans simply for being alive.

The New York Times is equally disingenuous. It characterizes the plaintiffs “interpretation” of the law as “baloney.” “In the long, tangled history of the debate over the Affordable Care Act, no member of Congress ever indicated a belief that the law would work this way,” the paper fumes. The Times’ hysterical conclusion? “Whatever legal games the challengers play, this case has never been more than a ginned-up, baseless attack on one of the most important pieces of social legislation of the last generation. The health of millions of Americans hangs in the balance.”

Wrong. The rule of law as written hangs in the balance. Furthermore, one fails to recall the Times’ indignation when millions of Americans lost insurance policies and doctors the president assured them they could keep. Nor do they seem particularly concerned that the healthcare mandate has engendered a substantial number of businesses to move their workers to part time jobs to avoid the costs associated with the bill, or that more than 90 million Americans have simply given up looking for work at all, giving the nation the lowest workforce participation rate since the 1970s.

In fact many on the left insist there is no causation at all – which is at least in keeping with their horrendously misguided belief that all human behavior is static, and that businesses saddled with extra costs will simply absorb those costs. Maybe they should run that argument by their union allies, who are apoplectic about the “Cadillac Tax” that will saddle medical insurance plans that exceed “predetermined thresholds” with a 40 percent tax beginning in 2018. It is designed to raise $80 billion over ten years–to finance the expansion of health coverage. There are special carve outs in that tax, pitting some union workers again others. But that’s OK with the AFL-CIO, which noted those carve outs are part of the law. "I’m not sure if there’s an indication that the administration should not follow the law,“ said Shaun O'Brien, the AFL-CIO’s assistant policy director for health and retirement.

All of the law, or just the parts that are "more equal” than others?

Make no mistake: The left is all in here, and, while they labor to make the argument about what the law meant to say, one of their own reveals why “established by the state” means exactly what it was intended to say. ObamaCare “architect” Jonathan Gruber, a term the Obama administration is furiously trying to obscure, despite the reality he earned $5.2 million advising the federal government and 12 states on how to implement the law – when he wasn’t bragging about the “stupidity” of the American public that made its passage possible – engaged in this critical exchange in January 2012:

Questioner: “You mentioned the health-information Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.”

Gruber: “Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is 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. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.”

The politics were ugly, and Democrats have no one but themselves to blame. The bill was jammed through the Senate entirely by Democrats on Christmas Eve 2009, with the full expectation that differences with the House version would ultimately be reconciled. Republican Scott Brown’s victory in a special Senate election in Massachusetts, resulting from the death of Ted Kennedy, ended the Democrats’ filibuster-proof majority. As a result, former Senate Majority Leader Harry Reid and former House Speaker Pelosi used budget gimmicks to pass the Senate version, absent any reconciliation. Since no Republicans voted for the bill, it was entirely Democrats’ fault that “established by the state” remains part of the law.

And now they and their allies want the Supreme Court not only to pretend it never happened but to countenance the idea that the president and the IRS can kick the rule of law to the curb, expanding the already-expanding powers of the Executive Branch beyond anything remotely resembling the limits imposed on it by the Constitution. Or as Catron puts it, a ruling that will engender  a “quantum leap forward in presidential power,” one Obama will take “as a sign that he has safely crossed the constitutional Rubicon.”

On the other side of that river lies the “fundamental transformation of the United States” into a nation where the law becomes whatever the President decides it is. Such a nation may be described in a number of ways. A democratic republic isn’t one of them.

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