Testing Mr. Dooley
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.
We don’t mind saying that we enjoy Linda Greenhouse’s columns on the Supreme Court, and few of them more than her latest warning on Obamacare. She may be several kilo-parsecs* to our left, but her capacity to plough through the briefs is heroical. Her latest column reckons that overturning Obamacare because of the curlicues of statutory phrasing at issue in King v. Burwell would “change the nature of the Supreme Court” itself. This because it would abjure its practice of looking at the whole of a law, etc etc, and resisting the temptation to get caught up in pettifogging.
King v. Burwell is the case about the alleged “mistake” by Congress in limiting certain Obamacare subsidies to “an Exchange established by the State.” Those insured under an exchange established by the federal government would end up out of luck, and the whole thing could unravel. The notion that this is a minor mistake in wording that the federal government can ignore is the gist of the administration’s argument. But why ask the Supreme Court to parse this problem? Why not just go back to Congress and get the legislature to fix its error?
Aye, there’s the rub. There’s not a snowball’s chance in perdition that Congress would repair this wording on its own. Obamacare passed the Congress in the first place without a single Republican vote in the House. Nancy Pelosi of the People’s Republic of San Francisco was Speaker. The usual rules of passing laws were short-circuited, and Obamacare went on the books with many of the members never having read it. Now the Republicans control both cameras and Congress is in no mind to fix the law.
It’s particularly difficult because the American people could have decided differently. They could have left control of the House with the Democrats. But they chose to yank control from Mrs. Pelosi’s party and give it the Republicans. That was in 2010. And then the blasted voters turned around and revoked Democratic control of the Senate. Hence the impossibility of a legislative fix of this problem through the statutory method. Hence the need to resort to the justices.
We wouldn’t want to predict what the court might do. But if the justices do upend Obamacare by enforcing the law as written, would they really be changing the court itself? It was the fictional comic character Mr. Dooley, created by the Chicago columnist Peter Finley Dunne, who uttered the now immortal line “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns.” He reckoned that it was always thus and would always be. So as another newspaperman, the epigram writer Alphonse Karr of France, put it, plus ca change.
* A kilo-parsec is 206,265,000 times the distance between the Earth and the Sun.