Fundamental Concepts - Game Over [Weirddave]

Ever since SCOTUS decided King V Burwell, I've been in a bit of a daze. Yesterday morning I realized I was just sitting on the edge of my bed, one sock on, my toes tucked into the other, just...staring out the window. My wife was behind me calling my name."Dave?....Dave?....Dave?..". I shook it off, but in truth I feel quite a bit like Private Hudson.

Strangely enough for someone who is an insurance agent, it has nothing to do with Obamacare. If it had gone the other way, God knows Congress would have fallen all over itself to to reinstate the subsidy. No, what was so gobsmackingly amazing about the decision was that it was justified on the basis of "intent". 6 out of 9 justices ignored the black letter written word of law in favor of "intent"

So why is this important? Well, let's start by asking a simple question: Why has the USA  been so prosperous? Expand the scope of the question: Historically, why has the Anglosphere been so successful? If one views all of the countries in the Anglosphere as branches growing off of a British trunk, underneath all of them, providing sustenance and support is one common root:

Rule of Law

Rule of Law is a concept that goes back to Greco-Roman times and earlier. The Bible introduces some Deuteronomic provisions to constrain the king that are perhaps the earliest iterations of the concept. Plato advocated a benevolent monarchy, placing his hopes on the willingness of the king to obey the law, Aristotle firmly rebuked him for such a Utopian concept. Things really got rolling in 1215 with the Magna Carta which limited the power of King John to act unilaterally. Samuel Rutherford turned traditional wisdom on its head with Lex,Rex ("The law is king" as opposed to the traditional Rex,Lex, "The king is law") Locke discussed the concept in great detail, and the Founding Fathers of the US kept the concept as their guiding star as they wrote the Constitution. In every case, as the concept evolved, society became more prosperous, more just and more stable.

And then along came John Roberts.

So what is Rule of Law? Simply put, Rule of Law means that the laws apply to everyone equally. A law is written. It says what it says, and everyone must obey it. No exceptions. The law applies to everyone, regardless of social status, political position, wealth, situation. The law says that one may not drive drunk. If someone is pulled over and they blow 1.5, it doesn't matter if they were really sad because their grandfather just died, or if their mother ruled Bartertown. They broke the law, they are arrested and tried. (I do realize that real life isn't quite as straightforward and often times position, power or wealth DO determine how laws are applied in individual cases, but we're talking theory here). Rule of Law creates a level playing field for everyone. 

Real life example: You want to set up a toilet paper factory. You can set it up in America, where a codified set of laws protects your property rights and sets legal limits on what the government can do to you, or you can set up shop in Venezuela where what you build belongs to a corrupt government and can be taken from you at anytime. Where do you build your factory? 

Exactly, and that's why Wal-Mart carries dozens of different types of toilet paper and they are wiping their asses with pine cones in Caracas.    

Which brings us back to the Affordable Care Act. Because the ACA made health insurance so expensive, the law contains provisions to financially enslave lower income people to the State provide subsidies to help working class people pay for the insurance. According to the text of the law,  these subsidies are only available to  people who purchase their insurance through an exchange set up by their state. The law states this two dozen times. Clearly. In plain English. Over and over again. Unfortunately for the architects of the law, most states did not set up an exchange, so the Obama administration instructed the IRS to offer the subsidies to people who purchased insurance on the Federal exchange, in clear violation of the law. This was the issue at stake in the case, which should have been the most open and shut decision in the history of the court.

It wasn't. The court found that subsidies on the Federal exchange were legal. From Robert's opinion:

The combination of no tax credits and an ineffective coverage re­quirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to op­erate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Na­tion, but those requirements only work when combined with the cov­erage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well.Pp. 15–19.

So the law doesn't mean what it says it means. Hmmm, Interesting concept, but I could see how it's barely plausible (Barely plausible means that one instance could be a mistake. Two dozen? Never). If a law was passed to require all of you peons to venerate “The Weirddave”, and by mistake it contained a typo and said “A Weirddave” so that you poor simple folks were worshiping inferior Weirddaves instead of me, OK, I could buy the intent argument. However, if the law says "a Weirddave" over and over and over again, well, what else can we conclude except that my insisting "Thou shalt have no other Gods before me!" is nothing but hubris? In this case we have multiple videos of the law's principal author, Jonathan Gruber, saying that not offering subsidies to people off their state exchange was intentional:

What’s important to remember politically about this is if you're a state and you don’t set up an exchange, that means your citizens don't get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.

Video here, go to 32:00 exactly for the quote.

So we have proven that Roberts' stated rationale for his decision is bullshit. It doesn't matter, his decision stands. There is not a Goddamn thing you or I or anyone can do about it. Roberts' decision arbitrarily precludes the Rule of Law. The ACA doesn't mean what it says it means. Why? Because six SCOTUS justices say that it doesn’t.

So where does this leave us? It leaves us as subjects to an oligarchy. No longer are we citizens giving our consent to be governed in a codified, orderly process. The USA as constituted is dead. Instead of ruling on the constitutionality of laws passed by Congress and signed by the President, the SCOTUS is now writing laws. All on its own, with no oversight or debate. Nobody elected them, they are not subject to election or review. Nobody can veto their laws really do anything at all. The new law exists because the SCOTUS says that it does, and you must obey or suffer the consequences. Rule of Law had a good run. June 15 1215 to June 25, 2015. Ten days from being an even eight centuries. Hell of a run. Wish I'd lived in the middle of it rather than at the end.

What's the effect on your life? Nothing. Seriously, nothing.

Today.

Or tomorrow.

Or even the next day.

Buy some day soon, someone is going to bring a case before the SCOTUS citing King V Burwell as a precedent because whatever the lawsuit is about concerns the “intent” of whatever law is in question.

And the court will agree with their precedent because that's how it's designed to work.

A year later another case will do the same.

And then another.

And another.

And by the time your son or daughter or grandchild feels within themselves a burning desire to build THE BEST DAMN TOILET PAPER FACTORY IN THE WORLD!, the State will have the unquestioned ability to take that factory from them in the name of whatever. Rule of Law will be a quaint anachronism.

And we'll all be wiping our asses with pine cones.

Heck of a job Roberts, heck of a job.

posted by Open Blogger at 10:45 AM

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