A Supreme Disgrace

When Moses had written down this law, he entrusted it to the levitical priests who carry the ark of the covenant of the LORD, and to all the elders of Israel, giving them this order: “On the feast of Booths, at the prescribed time in the year of relaxation which comes at the end of every seven-year period, when all Israel goes to appear before the LORD, your God, in the place which he chooses, you shall read this law aloud in the presence of all Israel.

Assemble the people – men, women and children, as well as the aliens who live in your communities – that they may hear it and learn it, and so fear the LORD, your God, and carefully observe all the words of this law. Their children also, who do not know it yet, must hear it and learn it, that they too may fear the LORD, your God, as long as you live on the land which you will cross the Jordan to occupy.”

Deuteronomy 31 9-13

For a long time written law has been a significant part of human history.

The oldest (known) set of written laws known to man is the Code of Ur-Nammu from about the year 2100 BC.  A tablet containing these laws was first discovered in the mid 20th century.  Prior to that the Code of Hammurabi from several hundred years later was the oldest known recorded law in existence.

The concept of written law so that any person can understand is important.  A law written means that any person who is literate can see what the law actually says, and if a person is not literate a person can read them the law so that it can be known and understood as done by King Josiah :

The king now convened all the elders of Judah and Jerusalem.  He went up to the house of the LORD with all the men of Judah and the inhabitants of Jerusalem, the priests, the Levites, and all the people, great and small; and he had read aloud to them the entire text of the book of the covenant that had been found in the house of the LORD.  Standing at his post, the king made a covenant before the LORD to follow the LORD and to keep his commandments, decrees, and statutes with his whole heart and soul, thus observing the terms of the covenant written in this book.

2 Chronicles 34:29-31


Of course the whole idea of written law being a sign of justice and right as opposed to laws being changed on a whim by an unjust ruler is based on the quite logical idea that the law means what it actually says.

And that brings us to the Supreme Court and the hearing of Obamacare King v. Burwell.

The amazing thing about this case is that what the law ACTUALLY SAYS is not in dispute.  The law explicitly says that congress authorized subsidiaries for people in obamacare exchanges “established by the states”.

However we have justices in the United States Supreme Court actually arguing against interpreting the law based on what it says:

Justice Kagen:

“We look at the whole text. We don’t look at four words,”

Justice Sotomayor:

Sotomayor wondered why the four words that so bother the challengers did not appear more prominently in the law. She said it was like hiding “a huge thing in a mousetrap.”

Justice Ginsberg:

Justice Ruth Bader Ginsburg suggested the four words at issue were buried and “not in the body of the legislation where you would expect to find” them.

These justices, learned legal scholars,  actually made the case in the Supreme court that the explicit words of a law passed by congress and signed by the president should be ignored because they didn’t like where their appeared, or they weren’t significant enough.

This is insanity for three reasons:

The first being that such an interpretation presumes that the lawmakers in Washington DC, many of them lawyers themselves, would not have bothered to consult any lawyers during the drafting of this law, which was argued and debated over a long period of time.  Nancy Pelosi not withstanding,  the concept that lawyers wanted to be sure that the exchanges covered Federal exchanges  did not or could not think of inserting language to explicitly say so involves a willing suspension of disbelief.

The second being that proponents of the law explicitly argued at the time of its passage that the refusal to subsidise states without exchanges was a deliberate attempt to force states to create exchanges.  News coverage discussed the predicament for republican governors saying they would be forced to implement exchanges due to pressure within their state.

Huffington Post 2012:

Democrats, meanwhile, hope to use the law and Republican inflexibility to their advantage, betting that more Americans will embrace the law once it expands coverage. The calculus for voters, Democrats assume, will become more about the policy and less about a polarizing president.

“It shouldn’t be complicated at all,” said John Anzalone, an Obama pollster who assists Democrats in federal races across the country.

and let not forget Obamacare (and Romneycare) architect Jonathan Gruber explicitly stating on multiple occasions in public forums that this was the case:

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.

But while either of these are significant the real piece of insanity is as follows:

At least four justices of the US Supreme Court are apparently willing to rule that what a law explicitly says has no bearing on the implementation of the law itself.

Mind you they are not rejecting the wording of the law because they claim it is unconstitutional, they are rejecting the plain wording of a law for their own interpretation of it because they don’t like it.

Think just for a second what that means.

What is the point of having a written code of law if what the law says means nothing?  Why have written contracts?  Why bother?  If the plain text of a law can be thrown out not because of a constitutional issue but because an individual judge doesn’t like it then what does being “a nation of laws” mean?

And if the law doesn’t mean what it says?  Why obey it?



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