Scotus, Get Us Re-write

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

As a premium to our readers, The New York Sun today offers, free of charge, a way to resolve the latest Obamacare case before the Supreme Court. The case, known as King v. Burwell, centers on the meaning of a phrase in the Obamacare statue. The phrase is “established by the State.” Does it refer only to exchanges established by one of the 50 states? Or does it also comprise an exchange established by the federal government? If it’s the former, the plaintiffs win and Obamacare could collapse.

The solution herewith being offered by the Sun is to refer the matter not to the Supreme Court but to the Congress. If this is a matter of the Congress simply failing to write language in the law that conveyed its intent, why not give Congress a chance to fix its error? Aye, laddies, there’s the rub, isn’t it? For there’s not a snowball’s chance in Hades that the Congress of the United States is going to reword this law in the way the Obama administration insists Congress intended it to be read.

This is the difficulty up to which no one wants to face. What the court is being asked to do is interpret a law passed by a congress, the 111th, that no longer exists. The 111th passed Obamacare in March 2010, when the Democratic House majority, led by Speaker Nancy Pelosi, rammed the measure through without one single Republican vote. When America heard about this, it turned around and — faster than one could say affordable care — handed control of the House to the GOP.

So why would the Sun suggest that a solution to this impasses is returning the law to the Congress for a rewrite? Well, this is the point. The reason this whole matter is in the Supreme Court is that the people of the country, acting through the representatives of the people and the states of the country acting through their senators, don’t want this law rewritten to accommodate the President and Mrs. Pelosi. They’d be happy were the law were gutted. They never wanted it in the first place.

The question on which the justices are split — and or so seemed Wednesday — is how to get around this fact. The Supreme Court’s 10th justice, as we like to call the liberal sage Linda Greenhouse of the New York Times, is in such a swivet over the matter that she’s gone and threatened her nine colleagues on the court. If they dast enforce the law the way Congress wrote it, she warned, they’ll have a “great deal of explaining to do,” not to her, she notes, “but to history.”

Ms. Greenhouse writes this week that she thought the court was misguided the first time it took a swing at Obamacare and denied Congress the ability to justify its intervention on the commerce clause (it let the Congress use the taxing power). Yet she pointed out that people will be “debating it as long as the flag waves.” The notion that “the debate over structure has deep roots in the country’s history and a legitimate claim on the Supreme Court’s attention,” she wrote, is something that “even I have to concede.”

No such thing was conceded by Ms. Greenhouse at the time of the first Obamacare case. What she actually wrote was: “The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.” Hence this premium for our readers: the best way to handle the statutory question is to send the law back to the branch of the government that actually wrote it in the first place and see if it’s willing to do a rewrite.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

By continuing you agree to our Privacy Policy and Terms of Use