COLUMN: King v. Burwell: Activist Supreme Court Again Bails Out Obamacare and Ignores Rule of Law

June 29, 2015
Weekly Column and Op-Ed
By Rep. Dan Newhouse

Last week in a 6-3 decision, the Supreme Court accepted the federal government’s argument in the case of King v. Burwell, and in the process effectively rewrote legislative text.   I was deeply disappointed with the Court’s ruling. Justice Antonin Scalia wrote in his dissent that, “the Court forgets that ours is a government of laws and not of men.” The Court’s decision effectively rescued Obamacare from its own text, setting a worrisome precedent that ignores the legislative role our Constitution gives exclusively to the people’s elected representatives in Congress.

The issue before the Court centered on whether the wording of the text of Obamacare authorizes billions of dollars in federal tax credit subsidies to apply to health plans available on the federal exchange, However, the exact wording in law refers only to subsidies for exchanges “established by the State.” Despite the language of the law, the Internal Revenue Service extended tax credit subsidies to plans on federal exchanges in states that had declined to set up a state exchange. The IRS’s actions were challenged in the Supreme Court since these plans were not purchased in exchanges “established by the State.”

The Court’s conclusion that federal subsidies were authorized by Congress required the majority of the justices to conduct what Justice Scalia called, “interpretive jiggery-pokery” in his dissent. Justice Scalia continued: “Words no longer have meaning if an Exchange that is not established by a state is ‘established by the state.’” While the Court’s decision would not have an immediate effect on Washington State, because the state opted to establish a state exchange that was clearly eligible for federal subsidies, the legal precedent that the Court has put in place will certainly have future ramifications for the principle of the separation of powers. Most disturbing - the principle that only Congress has the responsibility to write the law has been muddied by this ruling.

This is not the first time that the Court has bailed out Obamacare. In a separate case in 2012, the Court upheld a key provision of the President’s law: the individual mandate requiring Americans to purchase health insurance or face a fine. Instead of striking down the individual mandate as an unconstitutional penalty that is not authorized by the Interstate Commerce Clause of the Constitution, the Court upheld the mandate as a tax.  

I have heard from many constituents from Central Washington who are worried about the uncertainty created by Obamacare. Retirees have contacted my office with concerns about their health insurance becoming less affordable after the enactment of Obamacare. President Obama famously promised Americans that if they liked their insurance, they could keep their insurance. Sadly, we know after the fact that is simply not true. I voted to repeal Obamacare because Americans do not want a one-size-fits-all healthcare system run by government bureaucrats.

Americans deserve a patient-centered approach that ends federal mandates and makes access to health care more affordable. I am committed to working with my colleagues in Congress to protect Americans from this fundamentally broken law, and I will continue to fight to empower patients rather than the government with their health care decisions.