WASHINGTON, June 25, 2015 – The Supreme Court decided King v. Burwell, and Obamacare, regardless how the law was written, is now (again) “constitutional.” So, it didn’t matter that “We had to pass this law to see what’s in it,” after all, because what’s in it also doesn’t matter.
In contrast to enraged Americans, Canadians are able to maintain their sense of humor, even in the face of all-out idiocy and assaults on their common sense, their language and their law. This is perhaps best-demonstrated in a fictitious case, unfortunately oft-cited by American law students. It is known as Regina v. Ojibway. But Americans have always been serious about their reverence for the law.
Well, almost always. Well, mostly, at least until June 25, 2015, when the case of King v. Burwell was decided 6-3 (Justices Scalia, Alito and Thomas, dissenting).
The Regina case involves a Mr. Ojibway, who was an Indian. His pony injured its leg far from veterinary help; no improvised first aid would be effective. He was obliged to put his pony out of its misery. Ojibway was convicted under the Small Birds Act, and fined. He appealed.
The court documents explain:
In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness. The accused was then charged with having breached the Small Birds Act, s. 2 of which states:‘2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.’ The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.
In light of the definition section my course is quite clear. Section 1 defines “bird” as “a two-legged animal covered with feathers.” There can be no doubt that this case is covered by this section.
Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law.
Yeah, like that. Except Regina is a fictitious (and Canadian) case, and King is not.
As Justice Scalia wrote in his dissent (Justices Alito and Thomas concurring),
The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
Ah, but if it suits the purpose of President Obama, a pony is a small bird, standing on two legs and covered with feathers. And a state is a federal government. The dissent continues:
This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.
Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State.’ And it is hard to come up with a reason to include the words ‘by the State’ other than the purpose of limiting credits to state Exchanges.
Scalia recognizes and addresses the problem, and the problem has nothing to do with legitimate judicial interpretation: “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
Congress and law itself are now irrelevant. The constitutional framework of our nation does not matter. Law itself does not matter.
America is dead. Long live King Obama.
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