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ObamaCare: Not the Court’s Job to Change How Law is Written

The time is near: later this month the Supreme Court will issue its ruling on King v. Burwell. The case centers around the question of what the phrase “established by the state” means, and how it affects eligibility for subsidies.

Plaintiffs contend that the words take their literal meaning, only exchanges set up by the state are eligible for subsidies. The government’s position is that the words do not really mean what they say, and that the federal government is also included as a state for subsidy purposes.

The unique thing about this case is that the plaintiffs are not the ones attacking ObamaCare and trying to change it, its defenders are. The plaintiffs argue that the law should be applied as written, while ObamaCare’s defenders hope the Court will change the law to make it conform with how they want the law to work, instead of how it was written.

The staff that wrote ObamaCare have said that they never intended to limit subsidies to exchanges set up by the states. The only problem, this is exactly what they wrote! If the intention was for subsidies to flow from federal exchanges as well, it is up to Congress to change the law, not the Court.

Article III of the Constitution grants the judiciary branch the power to decide individual cases and controversies. Article III does not grant the Court the authority to change written law to have it conform with what the authors supposedly wanted it to say.

It is the duty of Congress to write the laws, and the courts to decide cases based on the written law, not what the supposed intention of the law. There are two main reasons for this. First, the intention of Congress is often difficult to ascertain, and more importantly,not all individual legislators have the same intention when voting on a bill. Second, legislators vote on the text of the bill that is in front of them, not on the intentions of the authors or sponsors. As Justice Scalia said during oral arguments, “I mean it may not be the statute they intended. The question is whether it’s the statute they wrote.”

ObamaCare is a poorly written law. In part because it was rushed through Congress without the normal committee hearings and floor debate, and in part because it is a monstrosity nearly a thousand pages long. The Democrats in Congress felt the need to rush the bill because it was both unpopular with the public and the Senate was about to gain another Republican member after the special election of Scott Brown.

The fact that the bill was hurried through Congress, and poorly written as a result, does not allow the Court to rewrite the law to conform with the possible intentions of its authors. If proponents of the law want to fix it, they need to go through the normal channels to fix legislation, Congress. It is not the Court’s job to “fix” poor law, and they should not be expected to do so.

Jim Darby's picture
Jim Darby

Unmentioned by the author are the 'Activist' courts - usually left leaning in these terms, which have made new law and new rights, and this court is one of them with Citizens United. It has been a policy of the court also not to throw out the baby with the bathwater, which a ruling for the Plaintiffs would do since it would deprive those people already getting subsedies in states without exchanges and leave those with state with exchanges still getting the dubsidies and would create the Constitutional issue of equal protection of the laws.
Here, also is a case of where if the Plaintiffs prevail, the conservatives may loose big in the next elections at both the state and national level. Does anyone think that the people who not get the subsidies are going to vote the Conservatives who did not vote for the exchanges back in to office?
If you look at a map of the US showing poverty, you will see that there are far more 'Red' than 'Blue' areas of poverty in states without exchanges than there are with exchanges.
For example, I am the 'token' liberal at my Legion Post, and the vets there lean conservative, but when I did the numbers on how we got into the on-going scandal and reported them - they really began with Reagan and his desire to wipe out all domestic spending - including that for the VA health care system, the applications and appeals began to build, and then there were the years during the GW administrations where the House committee would not even hear our Vet Organizations Commanders, and the year that the Secretary had to go back for a special appropriation to cover about the last 4 months of the fiscal year. This seems to have changed the orientation of the post, and our post commander presented it at other meetings. The word that Conservatives really do not like healthy people is going to spread.

foghat's picture


Smorgasbord's picture

Just out of curiosity, does a court have to rule, “Yes” or “No” on every case, or can one of the decisions be that there is no law covering that particular issue, then automatically refer it to the state or federal congress to come up with a law covering it?

Somebody came up with a brilliant idea of having the court refer to the part of the US Constitution or other laws that they used to come to their decision. If there is not law they can reference, doesn’t that mean that there is no law covering the situation, and the court can’t decide?

obie01m's picture

There are most certainly enough lawyers in the obama administration to word legislation to say exactly what they mean. The law was passed (was rammed through) as it was written,and every word should stand and be evaluated exactly as it was voted on. The law should be OVERTURNED, and not changed

Alyssa Miller's picture
Alyssa Miller

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