Tuesday, August 23

Thanks to the emperor and Supreme Court, clear laws no longer mean what they say


In case you didn't learn this in high school, the Constitution says all laws have to be passed by congress.  The president isn't allowed to write or pass laws, but is supposed to enforce the laws passed by congress.  Simple.  Clear. 

But Obama has decided the Constitution is simply a recommendation, and has turned this clear order on its head:  He now issues what amount to imperial decrees that have the force of law.  Of course his handlers have told the press to call these edicts "executive memos," since "imperial decrees" might have irritated a few million voters.

The Supreme Court isn't supposed to write laws either.  Nor is it supposed to re-write laws to undo bad ideas or repair flawed language.  But in the age of the emperor and his minions the Supreme Court has taken a hint from the emperor and expanded its mission:  Now the court has taken it on itself to not just declare unConstitutional laws unConstitutional, but to re-write parts of laws that the administration doesn't like.

You may think this is no big deal.  After all, if a law is flawed in some way, what does it matter who fixes it, eh?  But here's the problem:  Laws are supposed to be hammered out by debate between the opposing parties.  This almost always requires compromise.  But if the courts take over the process, no compromise is necessary.  Which produces outcomes that are uniformly crazy.
For example, you may be absolutely shocked to learn that the 2000-page nightmare known as Obamacare was not well thought out.  In fact, it contained a number of clear provisions that were so wretchedly unworkable that the whole damn thing would have collapsed had the law retained them.

The emperor "resolved" some of the most objectionable provisions by simply decreeing that the startup dates specified in the bill were null and void.  That is, he changed the law by decree.

Cool, huh?

But opponents of the law sued the administration on one specific, clear provision before the emperor could change it:  One of the main objections to the law was that by design, it supposedly forced everyone in the country to buy health insurance.  This was called "the mandate."  To enforce this demand the law imposed a fine (which the courts claimed was merely a "tax") on everyone who didn't buy health insurance approved by the emperor's minions. 

Problem was that the actual, y'know, language of the bill (which ended up in the actual law) stated that the mandate was only to apply to states that set up a "state health exchange," and NOT to people who lived in states that opted to join the federal insurance pool instead.

Hell of a difference there, eh?

The normal solution would be for the administration to ask congress to pass a short bill to change or delete the fatally-flawed language.  This type of "corrective legislation" is quite common.  

But the emperor and his Democrat congressional leaders Nancy Pelosi and Harry Reid had burned their bridges with Republicans in congress by being such assholes about ramming the bill through (without a single Republican vote).  And since in the 2010 mid-term elections voters had given the Republicans slim majorities in both houses for the first time in decades, Pelosi and Reid knew that to get the Republican votes to pass any corrective legislation they'd have to make significant compromises.

Since the emperor never compromises, this was a non-starter.

But no problem:  The Dems had an ally in the Supreme Court.



The question of whether the penalty for not buying health insurance was to apply to everyone, or just to residents of states that set up their own "health insurance exchanges" (as the law clearly stated) was decided by the Supreme Court in June of 2015 (King v. Burwell).  The emperor's agents told the court that the clear language of the law--that the fine was only to apply to residents of states that set up their own "exchanges"--was never what was intended.  Instead they argued that the fine was intended to apply to everyone.  

Big difference, eh?

They also argued that Obamacare would collapse if the law wasn't changed to make the language of the law agree with what they claimed was the intent all along.

The problem was that the actual wording of Act clearly imposed the penalty--whether called a "fine" or a "tax"--only on residents of states that had set up their own "state exchange," and not in states that had opted to join the federal insurance exchange.

And only 16 states had set up state exchanges.  Officials in the other 34 realized that trying to set up and run a state health insurance vendor was likely to be a disaster, so they chose to join the federal exchange.  

Thus if the law remained as the clear, unequivocal language stated, residents of those 34 states wouldn't have to pay any fine for not buying health insurance.  This would remove the incentive to buy such insurance, since the law also forced insurance companies to sell health insurance to people even if they had a "pre-existing condition," at the same price as those who were perfectly healthy.  

Needless to say, this ruined the Democrats' rosy projections for the number of people who would buy health insurance--killing the amount of projected premiums.

The emperor's agents argued--correctly--that if the court allowed the law to do what the actual language very clearly said, people in the 34 states on the federal "exchange" wouldn't buy insurance, meaning premiums would have to rise hugely--leading even more people to not buy health insurance and throwing the system into what was termed a "death spiral."  

So the administration asked the court to simply re-write the law to change the allegedly unintended language, extending the mandate to every American--despite the clear language to the contrary.

Six of the supreme court judges agreed with the government's bizarre claim that no one in congress ever intended the law to mean what it clearly said, and that this would indeed doom Obamacare.  Accordingly, the court simply declared that the financial penalty applied to every American.  In effect the court said "We declare that clear, unequivocal language doesn't mean what it says."

Fast-forward to today, just over a year later.  Insurers are announcing on practically a weekly basis that they are trimming or even eliminating their Obamacare coverage in more and more states.  They give as the reason that healthy individuals are not buying insurance under Obamacare as expected, thus triggering a death spiral.  
Wait, didn't the Supreme Court protect Obamacare against a death spiral by deciding, as the president's lackeys argued, that the penalty--the "mandate"--applied in every state, regardless of whether it had a state exchange or the federal exchange?  Yes.  But that wasn't enough to fix it, because the same law exempted from the individual mandate a modest number of individuals in several categories.  But the ACA left the barn door wide open with the last category: "[a]ny applicable individual who for any month is determined by the Secretary of Health and Human Services ... to have suffered a hardship with respect to capability to obtain coverage under a qualified health plan."  That is the so-called "hardship" exemption.

The Obama administration then took it upon themselves to issue regulations defining "hardship" in such expansive terms that huge swathes of the population are exempt from the individual mandate.  You heard that right: after pleading with the Supreme Court to make sure that the individual mandate applies nationwide, so as to avoid a death spiral, the administration has itself triggered a death spiral by issuing regulations exempting tens of millions from the individual mandate.

For 2015, the list of exemptions invented by the bureaucrats and said to represent "hardship" relieving the individual from the individual mandate includes:
- homelessness,
- eviction within the past six months,
- facing eviction or foreclosure (even if not evicted yet),
- received a shutoff notice from a utility company,
- experienced domestic violence,
- death of a close family member,
- fire or flood or other disaster that caused substantial damage to your property whether natural or man-made,
- filed for bankruptcy within the past six months,
- medical expenses within the last 24 months that you couldn't afford to pay,
- unexpected increases in expenses due to caring for a family member who was ill or disabled or just aging,
- a child has no medical coverage because some other person is responsible (by court order) but has not paid,
- ineligibility for Medicaid because your state did not expand eligibility under Obamacare, or
- your individual insurance plan was cancelled and you believe other marketplace plans are unaffordable.


Those uninsured who can't find a way to fit into one of those categories just aren't trying.  But just in case they can't, the regulations let them make up their own category: any other hardship that prevented them from obtaining health insurance.

The effect of these exemptions has been to remove the threat of having to pay a fine or tax from millions of people who simply don't want to buy health insurance under Obamacare.  The Wall Street Journal summed it up: "[a]lmost 90% of the national's 30 million uninsured won't pay a penalty...in 2016 because of a growing batch of exemptions to the health-coverage requirements."

So the emperor got the decision he wanted from the Supreme Court by claiming--correctly--that his signature law would collapse unless the court fixed it--but then just a couple of years later directed his lackeys to issue regulations shielding almost all of the uninsured from the individual mandate--thus guaranteeing the very death spiral that scared the Supreme Court into re-writing the law.  

And now, as insurers are announcing their departure from Obamacare--due to lack of participation by healthy individuals--he's leaving the White House, leaving someone else to clean up the disaster he and his Democrat congress caused.  

To many observers the court's decision in King v. Burwell was a clear case of the court re-writing a fatally flawed law, clearly to avoid forcing the emperor to use the time-honored method of asking congress to amend allegedly flawed laws.  All Democrat leaders knew that they couldn't use the traditional method without having to compromise, which meant the court was the way to go.

Just so we're clear, courts at all levels have been called on to resolve ambiguous language in legislation and contracts.  This is uncontroversial.  But the key word there is ambiguous.  The language of the laughably mis-name "affordable care act" was totally clear.  Yet the court changed it.

So what can we learn from all this?  If you're a Democrat/liberal/"progressive" the answer is:  this is great.  Do it like this every time, because it lets us sneak things into the law which the clear language totally contradicted.  And eventually the system will be so utterly fucked up that people will beg you to take care of 'em.  Result:  Perpetual Democrat control of government.

If you're NOT a Democrat the answer is: don't vote for Democrats.

Closing question: How long can a nation delude itself into claiming it's a "nation of laws" when the plain language of a law can be changed--by the courts--because the president doesn't like the result?

Hat tip:  Hollis Hurd  at American Thinker

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