Obamacare supporters are mistaken if they think the Supreme Court's King v. Burwell ruling settles the issue. Even in defeat, King threatens Obamacare's survival, because it exposes Obamacare as an illegitimate law.
Say what you will about the Affordable Care Act. Democrats passed it in haste. In desperation. Without knowing what was in it. With no bipartisan support. By one vote. In the dead of night. Over public opposition. Using lies. With disdain for "the stupidity of the American voter." Still, barring some constitutional defect, the ACA as enacted was the law of the land.
Yet President Obama and the Supreme Court now have amended the ACA to the point where it has been transformed into something no Congress ever enacted — indeed that no Congress ever had the votes to enact. The executive and the judiciary have effectively repealed the ACA and replaced it with "Obamacare," which enjoys no such legitimacy.
Before the ink was dry on the Affordable Care Act, President Obama began amending it in dozens of ways that only Congress is authorized to do. Simply usurping Congress' legislative powers would have been bad enough. But Obama's changes were designed to prevent Congress from legislating.
The ACA immediately threw members of Congress out of their health plans, effectively cutting their pay by $10,000. Obamacare, in contrast, gives Congress a special exemption that lets them keep their health plans and slips $10,000 per year into the pockets of lawmakers, without the constitutional hassles of an act of Congress and an intervening election.
The ACA required many employers to buy more robust health plans six months after enactment. Obamacare, on the other hand, offered waivers to politically connected employers and union plans, lest they lobby Congress for relief.
The ACA requires large employers to buy coverage for their workers beginning in 2014. Obamacare, on the other hand, delays that mandate by up to two years, lest a backlash give rise to legislation. (Even Obamacare's supporters had trouble stomaching that one.)
The ACA threw millions out of their health plans in 2014. But Obamacare allows people to keep the very health plans Congress outlawed. Obama even threatened to veto bipartisan legislation that would have done the same thing, but legally.
Congress forgot to appropriate $135 billion for cost-sharing subsidies. Obamacare spends that trifling sum without an appropriation. And the list goes on…
The Supreme Court, led by Chief Justice John Roberts, has done even more to amend the ACA.
Roberts found that the ACA unconstitutionally forced Americans to buy health insurance — but then decided Obamacare can stay because it actually just imposes a tax on the uninsured. Never mind that Democrats deliberately decided against such a tax because they didn't have the votes.
Roberts found it would be unconstitutional for the ACA to threaten to revoke existing federal Medicaid grants from states that didn't expand Medicaid — but then he decided Obamacare could stay if he rewrote it to withhold just the new funding that comes with the Medicaid expansion. Never mind that's not what Congress intended.
In King v. Burwell, the ACA died yet another death. The ACA authorizes certain taxes and entitlements, but only in states where there is "an Exchange established by the State." President Obama nonetheless imposed those taxes on 70 million employers and individuals in the 38 states that did not establish exchanges.
Roberts admitted that the arguments by the King plaintiffs, who complained that the IRS was taxing them illegally, "are strong," and that their interpretation is "the most natural reading of the pertinent statutory phrase." He even acknowledged that Congress defined "State" in a manner "that does not include the Federal Government." Yet he amended the ACA again by allowing the IRS to impose the disputed taxes and entitlements. Never mind that he identified no statutory language authorizing those measures. Never mind that the operative language of the statute clearly prohibits them.
If the actual words Congress uses no longer constrain the IRS, what will?
By overriding the operative language of the statute, the Supreme Court colluded with the president to impose taxes and entitlements that no Congress ever approved; to deprive states of powers Congress granted them to block parts of the ACA; and to disenfranchise Republican and independent voters who swept ACA opponents into state office in 2009, 2010 and 2011 for the purpose of blocking the ACA.
The Supreme Court did not lose its legitimacy with King v. Burwell — it has made worse mistakes. Obamacare did. Having been rewritten over and over by the president and the Supreme Court rather than Congress, Obamacare cannot claim to be a legitimate law.Michael F. Cannon (@mfcannon) is director of health policy studies at the libertarian Cato Institute and "the intellectual father" of King v. Burwell. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.