Chief Justice John Roberts has built a legislative record to rival Sam Rayburn.
King v. Burwell, in which the Court ruled that an exchange not created by a state counts as "an exchange created by a state," is well understood as the second Roberts Amendment to HR 3590. He first successfully changed the law in 2012 when he ruled that the individual mandate — clearly unconstitutional as a mandate — was really a tax, and thus legal.
The Roberts Court is creating a new type of republic in which Congress basically suggests laws, and the other two branches actually write them.
After Congress in 2009 rushed the Affordable Care Act to the president, held together with duct tape with sharp bolts protruding, and already leaking coolant, the law got an extreme makeover from the Department of Health and Human Services, the Internal Revenue Service and Chief Justice Roberts.
Obamacare — setting aside whether one shares the stated goals or the implicit view of government's role — was always bad legislating. It was passed through backroom deals with the drugmakers and the hospitals, through legislative chicanery, through Cornhusker Kickbacks and Louisiana Purchases.
There were three separate Section 1563s.
It included provisions that no serious analyst, Left or Right, thought were wise: the employer mandate was one; the federal insurance for long-term care was another. So HHS suspended the long-term care program and then asked Congress to scrap it. The administration in 2013 announced it effectively wouldn't enforce the employer mandate for the time being.
Obamacare's congressional supporters have also voted to repeal at least two of the law's revenue raisers (the medical device tax and an onerous reporting mandate on small businesses called the "1099 provision").
The administration has rewritten the law in other ways, but the burgeoning executive branch legislating doesn't end with Obamacare. Obama's IRS, for instance, tried to regulate tax preparers without congressional approval, forcing a federal appeals court to patiently explain that the IRS "may not unilaterally expand its authority through such an expansive, atextual, and ahistorical reading of" the law.
That appeals court ruling seems quaint in the wake of King v. Burwell. As Justice Antonin Scalia put it, if the relevant passages in this law are ambiguous, "everything is ambiguous."
"Words no longer have meaning," Scalia wrote, "if an Exchange that is not established by a State is 'established by the State.'"
How does Roberts justify this rewrite of Obamacare?
"Congress passed the Affordable Care Act," Roberts solemnly explains at the end of the decision, "to improve health insurance markets, not to destroy them."
Roberts could hardly have made a more facile defense of the IRS's position had he written, "it's called the affordable care act, not the unaffordable care act."
Roberts is ready to ignore clear, unambiguous text because following that text would, in his opinion, undermine the purpose of the law. This game of favoring congressional intent over what Congress actually did is a weird one.
For one thing, there's no single congressional intent. In total, 279 different men and women voted for the ACA, all with very different intentions. Nancy Pelosi's intent may have been to make healthcare more affordable, but Ben Nelson and Bart Stupak may have voted for Obamacare in order to ensure cushy healthcare lobbying jobs afterwards.
The liberals who called Obamacare a first step towards single-payer arguably were voting for a dysfunctional insurance marketplace — one which would give way to a government takeover.
So when Roberts tries to divine why "Congress passed the Affordable Care Act," he is not only mindreading, he's also cherry picking.
It's fitting that Obamacare would survive, again and again, on this sort reasoning — that it's the intentions that count. Obamacare's authors and backers always brimmed with technocratic pretenses, but at the end of the day, their legislation was more an expression of values than a workable insurance system.
The protestors outside the court on Thursday morning captured the expression well, chanting, "Health Care is a Human Right."
In this Obama-Roberts world, Congress's role is to express values and desires — to lead a figurative chant that the IRS and the Supreme Court turn into actual binding laws.Timothy P. Carney, The Washington Examiner's senior political columnist, can be contacted at firstname.lastname@example.org. His column appears Sunday and Wednesday on washingtonexaminer.com.