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By Attorney Jonathan Emord
Author of "The Rise of Tyranny" and
"Global Censorship of Health Information" and
"Restore The Republic"
June 29, 2015
NewsWithViews.com

Throughout the ages, the essential element that distinguishes tyrannical regimes from just ones is the rule of law. So long as law is written and interpreted according to its plain meaning, the citizenry can have confidence that the law means what it says and will not be subject to the arbitrary will of those in power. By contrast, when law is either embodied in a person such that his whim or caprice is the law, or when written law is capable of any meaning desired by those who govern, tyranny reigns. The decision in King v. Burwell is one that will live in infamy, precisely because it replaced the rule of law with the arbitrary political will of a majority of Justices on the Court.

In that decision, announced on June 25, seven Justices of the Supreme Court (Justice Roberts writing for a majority also consisting of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) ruled that the phrase “an Exchange established by the State” did not mean what it says but instead means “an Exchange established by the State or the Federal Government.” The consequences of that rewrite are profound. Thirty-four states elected, in reliance on the plain meaning of this statutory provision, not to establish an Obamacare exchange. By doing so, they implicitly invited the federal government to create its own exchange in those states. But under the statute, only if a state establishes an exchange may tax credits (subsidies) be made available to insureds through those exchanges. In contravention of that plain language, the Obama IRS adopted a rule that made the tax credits available everywhere, in both state and Federal exchanges.

The majority decision of Roberts in this case as in the original Obamacare decision depended on mental gymnastics beyond the limits of language to transform patently unlawful acts into ones deemed lawful. In the Obamacare decision, it was the odd and irreconcilable determination that a law unconstitutional under the Commerce Clause could nevertheless be deemed constitutional under the Tax Clause, despite the fact that the statute defined the expropriation in issue as a “penalty” not a “tax.” Likewise, here, equally unambiguous language, to wit, “an Exchange established by the State,” has been rewritten by judicial decision to mean “an Exchange established by the State or the Federal Government.”

The majority’s decision is replete with several instances of illogic within 21 pages of tortured analysis, including among them this gem:

These provisions suggest that the Act may not always use the phrase ‘established by the State’ in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context.

Remarkably, the Court explains that it prefers to read the language in the phrase in an unnatural way, in a way that is in fact not only extra-contextual but also contrary to the plain meaning. This is result oriented jurisprudence: driven by a desire to uphold the statute against all comers, the Court reverses the meaning of the plain language. In that way politics reigns over the rule of law, which is rendered meaningless in the face of the outcome desired by a majority of the justices. That rending of the essential fabric of law is a form of tyranny having profoundly deleterious precedential consequences.

In a robust dissent, Justice Scalia joined by Justices Thomas and Alito, called out the interpretive injury in no uncertain terms. “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation makes it no less so.”

But what of the argument by the majority that context enables the plain language to be interpreted to mean the very opposite of the words in the statute? To that Scalia writes: “Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”

The Obamacare statute uses the “Exchange established by the State” not in an isolated instance but multiple times throughout the statute, compounding the interpretation error made by the Court. As Justice Scalia explains: “It is bad enough for a court to cross out ‘by the State’ once. But seven times?”

King v. Burwell is a blot on the Court’s record. Forever it will remind us of what happens to the rule of law when those with the power to decide elect their own preference over that of the people through their elected representatives. If King were to become the standard for statutory interpretation, no law would be safe from the arbitrary will of federal courts. Indeed, a person standing before the Court on a charge of violating a federal statute would necessarily be in a state of ultimate trepidation. Even if the plain language would free the person of liability, a Judge desirous of effecting a different result would not be limited by the statute but could go off on a frolick of his own in a quest for establishment of his own sense of justice, untethered by the law.

We are distinguished in the world by our commitment to liberty and to the rule of law. We have seen that numerous acts by those in power from the 1930’s to the present have put liberty in peril. Among those acts is the profound rearrangement of the relationship between the federal government and the individual effected by the Obamacare statute. For the first time in American history, in violation of the Commerce Clause, the federal government presumed to dictate what Americans must do with their after tax dollars (buy health insurance or suffer a tax penalty). That precedent means that whenever the federal government deems a matter of public interest import, it may without fear of constitutional limit, compel a person to expend any or all of his after tax dollars on the purchase of a particular good or service. If the purchase of health care insurance can be mandated by the federal government, why not the purchase of a computer chip for medical insertion beneath the skin to enable tracking of individuals or rapid receipt of their medical information in furtherance of federal anti-terror, crime prevention, or health service goals? Why not the compelled purchase of electric cars to reduce air pollution, or the compelled purchase of vaccinations? There is no limit to this dreadful robbing of American liberty.

Add to that the King v. Burwell decision, wherein the original Obamacare politicization of the meaning of “penalty” to be that of “tax” is furthered by the equally disingenuous politicization of the meaning of the words “an Exchange established by the State” to mean “an Exchange established by the State or the Federal Government.”

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With this license to reinterpret the meaning of law to be that which is opposite the plain meaning, there is no end to the mischief federal courts can work upon the nation. Legislation becomes fluid, a starting point, wherein words can be bent to have opposite meaning. This is currently the problem with administrative law, as virtually every federal agency reinterprets its governing statute to mean whatever is politically desired, even when opposite the plain meaning of the statute. Now the Supreme Court has ruled that very method the law of statutory interpretation. We can only hope that the ruling is an anomaly which will later be reversed and that the entire Obamacare statute will one day be revoked, but I would not recommend holding your breath as you wait for either of those events to occur.

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© 2015 Jonathan W. Emord - All Rights Reserved

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