Stanley Feld M.D., FACP, MACE Menu


I Still Don’t Understand The Supreme Court’s Decision

Stanley Feld M.D.,FACP,MACE

I still do not understand the logic of the Supreme Courts decision in King vs. Burwell.

The solution to the healthcare insurance exchange subsidies is simple. Congress needs to change the law to include subsides for people buy healthcare insurance in federal exchanges. It is not the Supremes courts job.

The Supreme Court changed the law because it believes that federal health insurance subsidies were implied in the law when there is evidence that federal insurance subsidies were specifically restricted.

Chief Justice Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,”

“If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter,” he continued, echoing language he used in 2012 to uphold another centerpiece of the law, the requirement that most Americans carry health coverage or pay a penalty. In that ruling he defined the penalty for noncompliance as a tax.”

Obamacare is a partisan law that is destroying the health insurance markets not improving them. A vote to repeal it now might be bipartisan even though President Obama would veto it.

Obamacare has been more destructive than helpful to the healthcare system. There is a better way to “improve the health insurance markets.”

Chief Justice Roberts took the opposite view in dissenting against gay marriage (Obergefell).

“Roberts’s Obergefell dissent is, at its heart, an attack on the method Justice Anthony Kennedy used to reach the majority’s conclusion that the Constitution forbids states from denying equal marriage rights to same-sex couples. Kennedy held that marriage is a fundamental right, and that this right extends to same-sex couples.”

Roberts offers a harsh response:

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

As Roberts explains, “the Obergefell plaintiffs’ “‘fundamental right’ claim falls into the most sensitive category of constitutional adjudication.”

 This claim does not rest upon a right that is specifically mentioned in the Constitution. Rather, the plaintiffs argued that marriage discrimination violates “a right implied” by the Fourteenth Amendment’s requirement that ‘liberty’ may not be deprived without ‘due process of law.”

A right implied is called “substantive due process.”

Chief Justice Roberts argued that federal health insurance exchanges’ subsidies were implied in Obamacare in his support in the King vs. Burwell case.

He rejected what is implied in the Obergefell gay marriage case.

Article 1, Section 7 is the part of the Constitution that gives us the process for creating laws in this country. This is the only method the Constitution permits for changing laws in this country.

  1. Both the House of Representatives and the Senate must pass a bill.
  2. Once a bill has passed both houses of Congress, the president can either sign it into law or veto it and send it back to Congress.
  3. If the bill is vetoed, Congress can over-ride the president’s veto and enact it into law with a 2/3 vote.


The Supreme Court has absolutely no role to play in creating or amending our laws according to the constitution.

The Supreme Court only has the power to make a judgments on the constitutionality of the laws enacted. It should not have the power to change the meaning of the written law.

This is especially true since a crafter of the law (Jon Gruber)  clearly stated the reason it was written that way.

“One of the architects of this law, Jon Gruber, has made it very obvious that this phrase was intended to mean exactly what it says.

Gruber has also emphasized that it was designed this way deliberately in hopes that it would pressure states to create their own exchanges

Chief Justice Roberts used the role of the courts argument in his dissent of the Obergefell gay marriage case. His reasoning is contradictory in both cases.

The Supreme Court decided that this law does not mean what Congress intended it to mean.

Applying this law as it was written would have some unpleasant consequences. Six of the nine justices on the Supreme Court have taken it upon themselves to re-write Obamacare to spare 6 million people loss of insurance.

The Obamacare cost to taxpaying Americans is $50,000 to $80,000 per person insured. There is a cheaper way to insure these 6 million people.

He did consider the cost of the EPA regulation to eliminate mercury from the air in the court’s decision to eliminate the regulation.

Did Chief Justice Roberts consider Obamacare costs to individual and group insurance plans? Individual and group plans are scheduled to increase by as much as 47% in Oregon. The Obamacare mandated penalty for not purchasing insurance in 2016 will be increased to $695 per person or 2% of the household’s income, whichever is greater.

The maintenance of the separation of power is a critical principal of the constitution and the Republic.

“It isn’t the Court’s job to save Congress from itself. If our politicians pass a boneheaded law that will have terrible effects on this country, it’s not the Court’s job to clean up the mess.

It is the role of Congress to figure out how to fix their own mess. If Americans recognize the mess Congress will face the consequences at the ballot box.”

President Barack Obama has consistently and unilaterally changed several of the deadlines.

He has constantly provided waivers from the law for people of consequence and labor unions who have protested. He has even given waivers from Obamacare to congress. 

Article 1. Section 7 of the constitution doesn’t allow the Supreme Court or the executive branch to make changes in the law without the consent of congress.

Few in congress have questioned whether President Obama has exceeded his authority with his numerous controversial executive orders. When some congressperson does he/she have been immediately marginalized by the President, his administration, and the traditional media.

The media is the message.  Millions of people repeat the same nonsense.

If you repeat a lie enough times it becomes the truth.

Even if you are someone who loves Obamacare, you should still hate this decision. The process of how you enact a policy is every bit as important as what policy is enacted.”

“And the way Obamacare has been manipulated demonstrates that our politicians are no longer restrained by the Constitution in any way.”

Everyone should be upset with the Supreme Court’s decision. It shows how irrelevant the Constitution and the rule of law have become in this country.

It demonstrates how close to tyranny our country is coming.

It’s our country’s 239th birthday.

Wake up America!

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