Commentary

Does Congress Write Our Laws or Not?

Last month’s Supreme Court’s ruling in King v. Burwell has made it official: There is not a single person in the United States who actually believes Obamacare can work as written. The only question that remains is, who gets to rewrite it?

President Obama thinks he can rewrite it all by himself. With good reason: he has successfully done so ever since has the law was first passed, tweaking a deadline here or increasing spending there. Six Supreme Court justices decreed last month that they can rewrite the law too-you know, to make it work. It seems the only folks in Washington who don’t get to rewrite ObamaCare are the majorities in Congress that were elected to repeal it.

In King v. Burwell, four Virginia taxpayers alleged the Obama administration is unlawfully taxing them and 70 million other Americans, as well as unlawfully spending tens of billions of dollars to hide the cost of ObamaCare coverage, contrary to the plain language of the Affordable Care Act.

That statute repeatedly says those taxes and subsidies may be imposed only “through an Exchange established by the State.” Nowhere does it authorize them in the dozens of states that failed to establish an exchange, and the federal government established exchanges instead. As has always been the case with Medicaid, Congress offered health care subsidies to a state’s residents, but only if state officials agreed to implement the program.

Congress needs to remind President Obama and the Supreme Court that only Congress gets to rewrite laws.

Enter Chief Justice John Roberts. Writing for the majority, Roberts reasoned that, if “established by the State” really meant “established by the State,” the ACA would collapse. Roberts found it “implausible” to think Congress would intend to pass a law that might fail.

One wonders whether the Chief Justice has ever seen Congress in action. Medicaid and countless other federal programs would completely collapse if states declined to participate. Another part of ObamaCare - the CLASS Act - already failed for the exact same reason the exchanges would. Recognizing that it had passed an unworkable program, Congress repealed the CLASS Act in 2013. These facts are undisputed.

Roberts nonetheless decided that Congress must not have meant what it said, so he and five other justices amended the ACA.

When it comes to seizing Congress’ prerogative to rewrite the ACA, though, the Supreme Court was late to the game. In instance after instance, the president has rewritten the statute to exempt favored constituencies from the law’s burdens, push implementation deadlines past the next election, or change inconvenient definitions.

  • Whereas Congress mandated that all businesses with more than 50 employees must offer coverage to their employees starting in 2014, President Obama decreed- via blog post - the mandate would take effect in 2015, except for a new category of businesses (50-99 employees) who would not be subject to the mandate until 2016.
  • In one fell swoop, the president invented an exemption from ObamaCare’s “reinsurance” tax that simultaneously benefits mostly unions, which are among the Democratic party’s most favored constituencies, while increasing the amount that tax imposes on everyone else.
  • University of Iowa law professor Andy Grewal found several additional ways the president expanded the reach of the taxes and entitlements at issue in King v. Burwell, such as offering subsidies to certain undocumented immigrants (and imposing taxes on their employers).
  • Just days ago, the administration delayed the ACA’s costly menu-labeling requirements until after the next presidential election.

The way things are supposed to work is: Congress writes the laws, and the president and the Supreme Court adhere to the law as Congress wrote it. That ensures the important decisions are made by the government officials who are closest to the people. If a law turns out to be unworkable, the people let their members of Congress know, and Congress can mend or repeal it.

That’s what the American people did when they elected congressional majorities committed to repealing ObamaCare. And that’s what those congressional majorities would have done, if the Supreme Court had followed the law in King v. Burwell.

Democracy and the rule of law don’t protect themselves. Congress needs to remind President Obama and the Supreme Court that only Congress gets to rewrite laws.

Michael F. Cannon (@mfcannon) is director of health policy studies at the libertarian Cato Institute. Modern Healthcare magazine dubbed him “the intellectual father” of King v. Burwell.