- - Wednesday, November 12, 2014

​​As the Supreme Court now considers another major challenge to Obamacare, it should remember these words: “Fool us once, shame on you. Fool us twice, shame on us.”

Deception abounds in Obamacare. A video of MIT Professor Jonathan Gruber, the “architect” of the Affordable Care Act (ACA), is all over the Internet, showing his admission that the entire measure was based on deceit, “written in a tortured way” to be deceptive so it could pass thanks to “the stupidity of the American voter.”

Another ACA deception is the core issue in the lawsuit the Supreme Court has agreed to decide. The ACA provides federal subsidies for millions of Americans so that they will buy health insurance policies. But the law’s text says that subsidies go only to those who buy insurance “through an exchange established by the State” where they reside. But 34 states never established exchanges. So their residents buy instead from a federal exchange yet are being given billions of dollars in subsidies thanks to creative IRS interpretation of who gets these tax credits.

Original drafts of the regulations denied subsidies to persons in those 34 states. The White House denies pulling strings at the IRS to help Obamacare, just as it denies using the IRS to go after political enemies. The final regulations ignored the text of the law and granted billions of taxpayer subsidy dollars to Obamacare supplicants in those 34 states.

Multiple lawsuits have challenged the strained interpretation. The Supreme Court on Nov. 7 agreed to decide the issue through a Virginia lawsuit, King v. Burwell.

The last time the high court considered Obamacare, Chief Justice John Roberts threw it a lifeline. He agreed the individual mandate exceeded Congress‘ power to regulate interstate commerce. However, his deciding vote by 5-4 decreed that Obamacare was valid just the same under Congress‘ power to tax. Except President Obama and supporters in Congress had jumped up and down telling the public it wasn’t a tax.

Back to Professor Gruber: “This bill was written in a tortured way to make sure CBO [Congressional Budget Office]did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies.”

Once the high court has already twisted the English language, why not swallow another legal pretzel? It’s feared that Justice Roberts might again agree to uphold Obamacare in another 5-4 decision.

In the most recent government brief, Solicitor General Donald Verrilli tries to lay a guilt trip on the justices: “Without the federal subsidies, individuals would lose the main incentive to purchase insurance. … It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans.”

Mr. Verrilli never mentions the millions of other Americans who have lost their previous affordable insurance thanks to the passage of Obamacare.

But the plain language of the law denies subsidies to residents of those 34 states. No federal agency has the power to rewrite our statutes through corrective regulations. Writing statutes is the job of Congress and Congress alone. In their haste to rush Obamacare to the president’s desk, some lawmakers claim they goofed. But why should taxpayers pay the price for that? And there was no mistake, according to what dear Professor Gruber said at the time, “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.”

The professor now is walking back his earlier comments just as convincingly as Mr. Obama denies promising that people could keep their insurance and keep their doctors. Both men are inconvenienced, however, by the fact that their earlier statements are well-documented on video.

The government lawyers are arguing to the justices that everybody knows what the law was supposed to mean, regardless of what the words actually said. So perhaps they’ll bring in an expert witness from the Psychic Friends Hotline. Or maybe they’ll try this famous quote from economist Alan Greenspan, “I know you think you understand what you thought I said, but I’m not sure you realize that what you heard is not what I meant.”

There’s a danger here that’s even more damaging than Obamacare: If the text of our laws means nothing, then we’ve become a government of men and not of law. That means things are decided according to who you know and with whom you’ve allied yourself. It’s Chicago-style government: Either you’re with the right gang or not. The adage becomes “might makes right,” instead of the other way around.

Preventing this collapse of our justice system is the responsibility of the Supreme Court. Actually, it’s a duty shared by all of us but it is the justices who are empowered to assure that justice prevails.

The Supreme Court needs to halt the billions of dollars that are wrongfully flowing out of the federal treasury. The unfortunate disruption of people’s lives is properly blamed on those who created the problem, namely Mr. Obama and the all-Democrat former majority (many of whom are now gone from Congress).

The law also requires repayment from people who wrongfully receive a subsidy. But there are hints that the IRS would claim the power to waive those refunds.

Mr. Obama treats laws and even the U.S. Constitution as though they’re written in pencil, easily erased and changed whenever he wants. The Supreme Court is being given a second chance to rein in the president’s lawlessness. This time around the justices are not simply conducting a trial; they are on trial as well.

Ernest Istook is a former Republican congressman from Oklahoma. Get his free email newsletter by signing up at eepurl.com/JPojD.

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