A Landmark Day for the Rule of Law

Chief Justice John G. Roberts: "It depends on what the meaning of 'state' is."

Chief Justice John G. Roberts: “It depends on what the meaning of ‘state’ is.”

The United States Supreme Court has ruled that wording in the Affordable Care Act — that subsidies should be limited to health care exchanges “established by the State” — did not mean what it plainly said and that Congress “meant” for subsidies to be made available to federally established exchanges as well.

In a series of other dramatic rulings, the Supreme Supreme also ruled that the sky is green, one plus one equals three and the laws of physics are subject to judicial interpretation.

— JAB

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33 responses to “A Landmark Day for the Rule of Law

  1. The SCOTUS is not a wordsmith group. It is supposed to discern the INTENT of legislation.

    If you were to look at ANY law from the Patriot Act to HIPPA – you would no doubt find wording that might be interpreted in isolation differently by different folks.

    It’s the CONTEXT and the INTENT that is the proper goal of a review.

    If the SCOTUS role was to wordsmith – no doubt we’d have thousands of lawsuits on every law ever legislated.

    It’s pretty simple – why would legislators put words in the law that would ultimately lead to it’s failure?

    The partisans now days don’t care what any of this means because their goal is to vandalize and tear down .. obstruct and damage -with no real alternatives .

    it’s not at all of ” this is wrong, we should be doing this instead”.

    not when the opposition itself – cannot even agree on what “do this instead” actually means – something they’d support as a group as legislation.

    It’s not just health care. It’s every major issue of our time – whether it’s health care or immigration or marriage, climate , or even what the Confederate Flags means

    The opposition these days has no solutions.. other than tear down and destroy.. their version of “starve the beast”.

    you can’t win with nothing.. and that’s pretty much what the opposition is selling these days.

    • “Why would legislators put words in the law that would ultimately lead to it’s failure?”

      Because they miscalculated. As the infamous MIT consultant Jonathan Gruber explained to anyone who listened, the intent was to create an incentive that would make it impossible for a state not to create its own exchange. That incentive didn’t turn out to be strong enough. The geniuses who crafted the bill miscalculated.

      So, now Roberts and the others bail out the inept authors of inept legislation in effect by re-writing the law. Not reinterpreting the law — rewriting the law.

      I know you’re fine with that as long as they rewrite the law in your favor, just like you’re fine with Obama creating new law through executive action. One of these days, someone will come to power you don’t like, and you’ll be very sorry that these checks and balances have been shredded.

      • Shredded, no less!

        If the checks and balances and laws of this land can hold up after:

        – The court deciding that corporations are people and money is speech.

        – The court declaring that racism is over despite all evidence to the contrary.

        I think we’ll weather this…

      • why would that happen with ANY law? you have multiple authors writing different parts.

        Gruber was correct about the American people. They don’t know health care from a hole in the ground. I’m willing to bet you that 9 out of 10 have no clue why their employer-provide has tax exemptions and pre-existing protections. They could not cite the law – much less the provisions in the law that give them their benefits.

        and no.. what I favor in ALL CASES is what was the INTENT of the law.
        This challenge was clearly not on the merits but on “gotcha” .. and it failed and it deserved to fail.

        you’re idea of “checks and balances” is polluted – especially when the vote is 6-3. What are the 6? lawbreakers?

      • They didn’t rewrite, they upheld the intent. Give me a break, seriously you can’t be this revisionist, you think 2009 fully democratic congress meant what YOU wanted?

        It’s over. Join the single payer crowd if you are upset, it will be less expensive to do single payer. The only people opposed are the insurance companies themselves.

        • It was rewriting. The first canon of statutory construction is to look at the words themselves. When they are clear, as with the ACA subsidy case, you end the inquiry. Legislative intent is immaterial. You don’t look to Congressional reports or debate when the language is clear on its face. SCOTUS clearly violated hundreds of years of legal precedent to save a poorly drafted law. What should have happened is to have dumped the matter back into the hands of Congress. Obama and Congress would be forced to find a compromise bill and both sides would likely give up on some issues.

          I’d strongly object to single payer as would anyone who has employer-connected insurance. The likelihood of having the same coverage is remote. And didn’t Vermont dump single payer because it could not afford the taxes necessary to fund it?

    • Way back when I was in law school, I had a class on statutory construction taught by none other than the man who would have been chief justice had Hubert Humphrey won the election in 1968. One of the very first principles is that one does not go beyond the words themselves when they are clear. The intention of Congress is expressed in its words. What Roberts did was poor legal work plain and simple. Courts do not save the legislature from its own stupidity. The ACA was poorly drafted and should not have been fixed by Roberts. The issue of tax subsidies should have gone back to Congress for fixing and horse-trading.

      The same sex marriage case suffers to an extent from penumbra and emanations disease finding rights where no one would believe they existed. But I must give some credit to Kennedy for at least acknowledging the law was governed by Baker v. Nelson, which held there was no federal question involved when a state refused to recognize gay marriage. His discussion was basically missing, but I admire Kennedy for directly overruling that precedent.

  2. Larry,

    Wordsmithing is exactly what Scotus did. They changed the words. You can call it editing if you like, but the net result is what is generally referred to as “wordsmithing” And yes, now you will in fact have litigation on every law because someone will claim that the law means something other than what it says in plain language, something they prefer and might be supported by some context or other. Sorta like Douglas’s penumbras and emanations in Griswold v. Connecticut (1965?) The answer to your question why legislators put words in the law that would lead to failure: You’re assuming they knew what they were doing, and we know for an absolute fact that they did not and could not have. Just recall the history of how it passed and the famous remark about “We have to pass the law to find out what was in it”. No one read or claimed to understand what was in the 2000+ pages. You don’t really seriously contest this. Instead you complain about how the opposition has no solutions, which is irrelevant to the issue of law.

    • they did not change a word.. JD.. not a word.. they did a simple thing. they looked at the overall context and the intent and 6 of them disagree with those of you who fancy themselves as armchair jurists.

      I’ll bet neither you nor any others of your ilk can tell me what is in the Patriot Act or the HIPPA law or the Medicare Part D law passed by the GOP.

      you guys go by what your echo chamber tells you.. not your own readings..

      if the echo chamber is mute – then you are too. Right?

      • Larry, you don’t look at the surrounding text when the words at issue are clear. SCOTUS violated hundreds of years of legal precedent to save a poorly drafted statute.

        • ” Subtitle B—Immediate Actions to Preserve and Expand Coverage
          Sec. 1101. Immediate access to insurance for uninsured individuals with
          a preexisting condition”

          These are the exact words of the actual legislation.
          are they not clear as to intent?

          Why would you CHOOSE to believe other words and not these?

          you guys are losers TMT.. you are willfully ignorant to suit a partisan view…. what the intended purpose was – is of no interest to those who really are not interested in the purpose in the first place.

          this is like you can write a thousand words that make crystal clear what your intent is and the opponents focus on one word – that is in contradiction – so which do you choose to believe and what have you chosen to ignore?

          • TooManyTaxes

            Larry, congratulations on your law degree. The clear meaning of the section at issue is to provide taxpayer subsidies to state-created exchanges and not to the federal exchanges. That language is the only part of the statute that was at issue. Going beyond the language constitutes willful error that was done by the Chief Justice to bail out Congress and protect, for bald political reasons, subsidies for many people.

            Katharine Clark and Matthew Connolly, A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES, Georgetown Un. (2006) (internal footnotes omitted). (a fair summary)
            “1. Plain Meaning
            “Courts generally assume that the words of a statute mean what an ‘ordinary’ or ‘reasonable’ person would understand them to mean. Moreover, some courts adhere to the principle that if the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute.” The last sentence is based on Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003).

            Now is this the law of the land? Yes. Must lower courts and the federal government follow the holding? Yes. The Supreme Court is the final arbiter of the law. Is it subject to criticism? Yes, lawyers and laypeople alike regularly criticize court cases. That is part of the American system.

            Since this merely a statute, Congress, if it disagrees with the holding, can amend the statute.

            If a client walked in and asked me what is the status of the case and what did I think of it. I say the case is the law. Taxpayer subsidies are available to those buying insurance on a federal exchange. The opinion itself is flawed; violated hundreds of years of precedent applying the canons of statutory construction; and was clearly a political decision by the Chief Justice to save the statute, despite clear Congressional language to the contrary. Next subject.

  3. Isn’t this exactly what conservatives desire? Rather than striking down a law passed by our political branches, the Court read the statute in a way to avoid dismantling a law?

  4. re: what the Conservatives ‘desire’. Is totally dependent on what they believe and want – not the law.

    I heard not a whimper from them on meta data in the Patriot Act – when the law passed.. not a whimper.. I heard not a whimper from them when in 2003 the GOP passed not only Medicare Part D but Medicare Advantage which is now destroying Medicare.

    we should make no mistake as to what Conservatives “want” – because they themselves don’t know until the echo chamber informs them.

  5. Speaking of rainbows, I saw “Inside Out” recently and I highly recommend it to all adults and any children over the age of 11.

  6. It’s hilarious to me that less than a week ago TMT was on this very blog letting everyone know that disagreeing with SCOTUS decisions was the first step on the slippery slope to total anarchy. Now that he disagrees with a decision this is the worst SCOTUS ever and their ruling is wrong and awful and soon he’ll have on his black hoodie and red, circled A.

  7. Conservatives should consider themselves 1-1 on wording interpretations from the U.S. Court. Today, “state” was apparently written in invisible ink. A couple of years ago, “in order to form a well regulated militia” was also written in invisible ink.

    • well the “militia” envisioned by some is one that is NOT regulated. In fact they are violently opposed to being regulated…

      the “word” games have been going on since the Constitution was written and scholars argue over what the Founding Fathers – INTENDED.

      for instance – what exactly did they mean by “arms”? Was it bazookas and RPG and full auto weapons?

      what did they mean by “equality”? yup.. that seems to still be a point of argument…

      • Larry, dog gone that General Assembly. having the audacity to define the Militia in Virginia in a way that sure doesn’t seem to contemplate ongoing regulation. Sec. 44.1 Code of Virginia. “The militia of the Commonwealth of Virginia shall consist of all able-bodied residents of the Commonwealth who are citizens of the United States and all other able-bodied persons resident in the Commonwealth who have declared their intention to become citizens of the United States, who are at least 16 years of age and, except as hereinafter provided, not more than 55 years of age. The militia shall be divided into four classes: the National Guard, which includes the Army National Guard and the Air National Guard; the Virginia Defense Force; the naval militia; and the unorganized militia.”

        Sec. 44-4 “The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2, 44-3, and 44-54.6, and except such as may be exempted as hereinafter provided.”

        Sec. 44-2 defines the National Guard. Sec. 44-3 defines the Naval Militia. Section 44.56.6 defines the Virginia Defense Force. In sum, it includes volunteers 16 to sometimes 65 or even 75 and members of the unorganized militia who are drafted by the Adjutant General. Everyone is under the command of the Governor.

        Sounds to me that, should Governor McAuliffe call out the unorganized militia, he might well be pleased when some show up with their AR-15s, as well as their great grandfather’s squirrel guns. Somehow I suspect that in the case of a major emergency of the type for McAuliffe to call out the unorganized militia, he have figured out a way to arm everyone or say, “Oh, I’m sorry, you have a AR-25 We cannot take you. We only want people who don’t have semi-automatic rifles.”

        Indeed, it’s much like the well-told story of John Burns from Gettysburg, who on July 1, 1863, found a battle raging in his town, and grabbed his musket. The US Army continues “The 69-year-old constable calmly took up his flintlock musket and simply walked out to the scene of the fighting. Approaching an officer of the Pennsylvania 150th ‘Bucktail’ Regiment, he requested to fall in with the troops. In near disbelief, the officer sent Burns into the woods next to the McPherson Farm, where he fought beside members of the Iron Brigade throughout the afternoon until he suffered three wounds and was captured by Confederate forces. He was released a short time later.”

  8. well never mind the AR-15… how about RPGs, C4, fully-auto M16s , etc?

    I mean how are you going to stop a despotic govt if you don’t have “arms” “parity”?

    And TMT – do you really want all those “thugs” coming to your neighborhood as an unorganized militia – Iraq-style? I bet you’d be on the phone to Chap and your other favorite elected demanding something be done about it, eh?

    😉

  9. The National Firearms Act of 1934 requires “a citizen to go through a comprehensive process before obtaining an automatic weapon. Possession of automatics entail: a minimum $200 tax paid to the IRS, and an approval from the United States Treasury Department. Unlike an application for a handgun permit, the federal license needed to purchase an automatic weapon involves, stringent background checks, a sworn affidavit detailing ‘justifiable cause,’ and a detailed mental test that shows no signs of threats to society.”

    Later federal legislation banned all fully automatic weapons not in circulation before May 19, 1986 except for sales to federal agencies or qualified license holders. There are detailed limits on who can obtain a license. Barring or limiting the ownership of fully automatic firearms is not the same as barring a person’s right to own and bear arms. Barring rifles, shotguns and pistols would be, according to the courts. The law is simply not “all or nothing” as your argument suggests.

    I believe grenades and, hence, RPGs have been illegal to own since 1968. And isn’t C4 considered a explosive, which carry their own set of regulations.

    I’ve been ins several businesses, chiefly restaurants, where I’ve seen open carry. And I’d imagine I’ve been around a few more people with concealed weapon permits.

    Can you concede the interpretation of the Second Amendment is consistent with the definition of militia in Virginia and many other states?

  10. well not really.

    1. how do we differentiate what “arms” “involves, stringent background checks, a sworn affidavit detailing ‘justifiable cause,’ and a detailed mental test that shows no signs of threats to society” and which “arms” that those who are mentally unfit can buy without such stringent restrictions?

    2. – you cite seeing folks with open carry. How would you feel if they were carrying auto AR 15s with bandoliers in the grocery stores or walking in groups up and down your own street as “militia”?

    do you REALLY want – actual “militia” with 21st century weaponry frequently your neighborhood or where you shop?

    • You still don’t seem to get it. State law says virtually everyone in the state between 16 and 55 (with potential extensions to 65 or 75) are members of the militia. They don’t go into service unless and until the Governor calls them into state service. They cannot call themselves into service. But they are generally permitted to own and carry arms, subject to some level of regulation. What cannot be done is to adopt rules and regulations that have the effect of prohibiting gun ownership.

      I believe businesses with proper notice can prohibit guns on their premises. Otherwise, I believe people can carry arms and with a permit, carry concealed.

      The topic not being discussed is the underworld of illegal sales and thefts of firearms. That’s the area I’d like to see addressed. The fact that my next door neighbor may have four or five guns doesn’t bother me.

  11. Oh I DO GET IT TMT.

    You’re wordsmithing here.

    You CAN BE DENIED ownership of “arms” .

    and I’m asking you ow we decide what kinds of arms you can own or not or without much stricter requirements.

    and I’m also asking you what is meant by “militia” in the words of those who defend the 2nd amendment. Do you think it allows a group of guys with AR 15s to walk down you subdivision streets and hang out?

    and why can’t these guys have RPGs and full auto weapons as they hang out in your neighborhood?

    Perhaps this is what the folks who want more restrictions should do – actually do what they are allowed to do – and see how that is accepted.

    • Except in certain cities and counties, open carry is allowed. In others, including Fairfax County, open carry is allowed unless the firearm has a clip with 20 or more bullets, or is a shotgun with more than 7 bullets in a clip. If Fairfax County is any example, it does not have any local regulation over the carrying of firearms. Only the discharge thereof is regulated. Concealed carry requires a permit that must be issued if the applicant meets the requirements including training.

      I’ve already addressed militias and federal restrictions on automatic firearms.

      So as I read state law, you can walk down your street carrying a semi-automatic rifle. While your neighbors may not like it and start shunning you, they cannot have you arrested.

      • can you walk down the street carrying automatic weapons and RPGs?

        why not if they are “arms”? How are you determining what “arms” you can own and ones you cannot – and how is making such a determination, not, i fact, a restriction of your right to bear arms?

  12. Thomas Hobbes is the philosopher of modern Liberalism. Law is only what the one(s) armed with overaweing power says it is. That is decree. Law is dead.

    • I’m not sure its dead yet. But this Supreme Court decision on the Affordable Care Act certainly drove a stake in close to the heart of the Law in America.

      Now the survival of the heartbeat of American Law depends only upon whether the Court takes prompt remedial action to change course. I doubt it will. I suspect the reverse: this decision will accelerate the pace of the US Supreme Court’s steady accretion of its own arrogant, unrestrained, final and determinative exercise of supreme legislative power in the US.

      This of course will kill American Law.

      It allows any five members of the nine Supreme Court Justices who agree in secret and among themselves alone, to act as a majority of the court, so as to place themselves on the Throne of Tyrants, dictating how everyone else lives.

      Thus these five people anoint themselves, and none others, as America’s version of the old Soviet Politburo. It’s nothing more than an naked and lawless grab of power by any five Justices who in their sole discretion arrange themselves collectively to render decisions of long lasting consequence on the American people.

      And these five Justices alone exercise their unfettered power respective of the will of the American people or their representatives in Congress, and instead take it upon themselves to decide grand issues solely on the basis of their own personal will and humor of the moment, that of five self- appointed tyrants acting as kings for life.

      For if statutory words written by the Federal legislature, the US Congress appointed by the US Constitution, and the plain meaning of its words written in its statutes, are without consequence to any majority of the US Supreme Court, much less serve to circumscribe or otherwise guide that majority’s decisions, but reach a completely opposite conclusion to their plain meaning instead, then Anglo-Saxon law is dead.

      For here the US Supreme Court has substituted its roll as the Supreme Court of the land to assume the mantel of the Supreme legislature of the Land. It has created a pyramid of Federal legislative bodies. It has also appointed itself as the apex of that pyramid, the final capstone.

      And it has done so after eroding the power of state courts and legislatures over generations, now it is going about the final destruction of federal legislative structures. The Supreme Court majority’s grab is now nearing completion.

      • The great irony here is that Chief Justice Roberts bemoans in the Gay Marriage Case the very result he enabled in the Affordable Care Case.

      • An interesting aspect of these two recent Supreme Court cases is the group dynamics that likely achieved their unusual results.

        Friedrick Hayek touched on this in “The Road to Serfdom”.

        Here Hayek explained how collective thought when reaching for a collective result often strips the truth from the decision making process. This occurs to achieve what “has to be believed in the interests of (group) unity” so as to achieve the results of “an organized effort” backed by the authority of the group. See the Notable & Quote section of today’s WSJ.

        Hayek’s comments recall a well documented experiment in group psychology. Here 6 people were asked to decide collectively which of two piles of wood contained the larger pieces of wood. Although the pile on the left contained the larger pieces of wood, four of the participants (without the knowledge of the other two) had agreed beforehand to insist that the right hand pile contained the larger pieces. In test after test involving different people, the two outsiders went along with the plainly wrong decision of the other four and endorsed it publicly as the group decision.

        The reasons for endorsing this falsehood are likely complex and many, both among the four instigators and the two who “changed their opinion”. At base the vast majority of people need to get along in group settings so as meet their own personal needs. These personal needs can include:

        1/ their need to gain power or to avoid losing it within the group and/or with society outside the group, and/or
        2/ to avoid conflicts or the loss of status or esteem within the group and outside the groups, and/or
        3/ to keep the group in business and expand the power and influence of the group, so as to maintain and enhance their personal own status, or
        4/ to finish the business of the group without public disagreement or perceived embarrassment.

        This is of course is far too often the reason that we have so many weak and ineffective corporate Boards of Directors, who are often made up of otherwise strong and effective individuals outside the Board.

        See on this website last comments in: baconsrebellion.com/2015/06/who-are-they-to-hate-now.html.

        In the US Supreme Court Justices allegedly chose to be in the majority by their own independent decision based on their independent assessment of the merits of each case. But is this really true? The Justices may think it is. But there is great and many reasons to doubt it. For their joining the majority affords each majority maker (and particularly the swing voters) enormous personal enticements and rewards if they will ignore “inconvenient” principle or truth to join the majority and thus swing the vote and perhaps gain their lasting fame. Or collect flavors for future decisions. The list is endless.

        Thus strong tests of character and principle, and the lack of both, are very likely often at play here. So, too, the personality and personal foibles of the Justices, if only their love of the exercise of power, including the privilege of writing the majority opinion that “lays down with great authority new law.”

        These and many other advantages, or the avoidance of disadvantages, surely can easily come to rule the day in forming majorities. And thus overrule all logic and plain meaning, all common sense and principle and reason, and yes too the law, that would otherwise rightfully carry the day. To claim otherwise is to blind oneself from human nature.

      • The more one delves into the words of these two recent opinions – the more one considers the majority’s written efforts to support its conclusions of law in each, and the more one tries to balance their decisions against the tenor, substance, and concerns of the minority’s dissents, the more concerned one can rightfully become.

        This is particularly so when one considers what the two cases might might spawn in the future, by way of unanticipated, unexpected, and highly intrusive consequences that might very well backfire politically.

        Several factors might compound to haunt the Supreme Court.

        I suspect its majority drastically overstepped its authority, legally and politically, on the face its opinions. And that in so doing the majority wrote a pair of remarkably sloppy and highly nonsensical opinions to justify decisions that hold the potential to impact and alter the lives and culture of a great many people over time in ways that those people did not anticipate and may well come to consider highly intrusive, adverse and arrogant, by reason of their cumulative impact.

        The court may have opened a can of worms here that puts its authority in harms way, and ultimately in jeopardy. In any event it has started something it has not the power to control given how it must operate.

  13. Like other issues – ultimately – the American people will arrive at some point where they can agree on something – we’ve just had a week of change that was opposed – suddenly changing in no small part because the American people wanted it.

    200 countries on earth. As far as I’m concerned – we have a very flawed system – but it’s way ahead of second place of the 200.

  14. “established by the State” – Early in the legislation it states that each state will establish an exchange, and if it does not do so the federal government will establish and operate one for it. That alone defines the term.

    Strictly speaking, “established by the State” means that ‘my’ health care insurance payment, for what the employer does not cover, is not subject to the subsidy. Pure and simple. The Supreme Court rule so, and it is the only rational interpretation.

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