The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

 

 

 

 

 

Wording and intent of ObamaCare law meant nothing … law is written on the wind

Remember how Jonathan Gruber, one of the architects of ObamaCare, explained why the law was written in such a way that states had to establish healthcare exchanges in order for citizens to get subsidies?

The Supreme Court ruled today that the clear wording and the intent of the law are meaningless.

“I think 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,” Gruber had said.

“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 and that they’ll do it, but you know once again the politics can get ugly around this,” he continued

Here are the opening paragraphs of Antonin Scalia’s dissent in King v. Burwell, which was joined by Clarence Thomas and Samuel Alito (cites deleted):

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.

The Patient Protection and Affordable Care Act makes major reforms to the American health-insurance market. It provides, among other things, that every State “shall . . . establish an American Health Benefit Exchange” — a marketplace where people can shop for health-insurance plans. And it provides that if a State does not comply with this instruction, the Secretary of Health and Human Services must “establish and operate such Exchange within the State.”

A separate part of the Act — housed in §36B of the Internal Revenue Code — grants “premium tax credits” to subsidize certain purchases of health insurance made on Exchanges. The tax credit consists of “premium assistance amounts” for “coverage months.” An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State under [§18031].”  And the law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State under [§18031].”  The premium assistance amount further depends on the cost of certain other insurance plans “offered through the same Exchange.”

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. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”