Putting King v. Burwell in Order

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It took all day to wrap my head around the logical mess that is the King v. Burwell decision. So in bullet point form, here’s what happened:


• Three dozen states, despite the promise of subsidies on health insurance exchanges “established by the state,” chose not to establish their own exchanges.

• Another part of ♡bamaCare!!! allowed the federal government to establish Healthcare.gov for buyers in states without exchanges.

• The architect of ♡bamaCare!!!, Jon Gruber, publicly stated that the denial of subsidies was the “squeeze” to prompt the states “get their act together” and establish their own exchanges.

• However the Obama Administration realized that without subsidies, Healthcare.gov would never take off, resulting in huge political embarrassment.

• The White House instructed the IRS to ignore the plain language of the law and issue the subsidies anyway.

• The Obama Administration thereby created a mess, where people who weren’t entitled to subsides were given them — and couldn’t afford to lose them.

• King v. Burwell stipulated the constitutionality of ♡bamaCare!!!, and instead sued to get the executive branch to administer the law as written, and to pay out subsidies only where authorized by law.


• The Supreme Court, presented with the Administration’s lawlessness, decided indeed the Administration wasn’t following “the most natural reading” of the law.

• However, the Court also decided that it was better to “endure whatever interpretive distortions it takes” and to allow continued lawlessness than to send the issue back to Congress where it all began.

The importance of that last point cannot be overstated. Chief Justice Roberts has established a new precedent: That Executive lawlessness shouldn’t be undone if the result of it might politically inconvenient, and that it is the Supreme Court’s new job to determine what the Congress “really meant” in order to give the Executive whatever legal cover such convenience requires.

I can’t even begin to imagine what mischief future Presidents will stir up, empowered by the Roberts Court in this way.


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