“I am your father, Luke.”

Before you read this column, please set aside whatever opinions you have about Obamacare and same-sex marriage. Whether you think the Affordable Care Act is the greatest piece of legislation ever or will soon become the black hole of all government debt — and whether you think same-sex marriage is long overdue social progress or the American government advocating sin — this entry won’t make sense if you read it from the perspective of whatever opinions you hold. So before you read on, please just set them aside for a few short moments….
You see, it is not the current policy on those two matters that is important; it’s the process by which they came to be.
A short civics reminder: the United States Constitution created three branches of government — the legislative branch, which passes laws, the judicial branch, which interprets laws, and the executive branch, which regardless of what it thinks about the laws that are passed or how they are interpreted, is charged with implementing those laws. After the Revolution, the founding fathers wisely divided government authority between these three equal branches of government — called the Separation of Powers — to prevent one branch from obtaining the abusive power wielded by the British monarchy.
Two landmark cases have just been decided by the Supreme Court of the United States, and regardless of whether you were parading in the streets in celebration or shaking your head at Facebook rainbows, every American needs to understand what just happened to the Separation of Powers.
First, the case of King vs. Burwell, about Obamacare. The Affordable Care Act is a 900-page piece of legislation that few lawmakers read before it was voted upon. It established a mechanism for states to set up health insurance exchanges, but the uninsured in states that did not could purchase insurance through an exchange established by the federal government. The law went on to say that insurance would be subsidized in exchanges “established by the state.”
There are different opinions about how those words ended up in the final legislation. Some say it was a mistake made while reconciling two versions of the bill. Others say it was intentional, as an incentive for states to establish exchanges. What is not in question is that those were the words in the legislation that Congress passed.
The IRS, an agency of the executive branch, charged with implementing the laws that have been passed, didn’t like those words, so they ignored them. They issued a directive through a federal register that subsidies were to be provided through all exchanges, whether “established by the state” or the federal government. A lawsuit ensued.
In short, six justices of the Supreme Court ruled that “established by the state” does not mean “established by the state.” In the context of the entire legislation, that must not have been what was intended, since so many states did not establish an exchange, and the law wouldn’t work otherwise.
My friends, we are no longer following the rule of law. “Established by the state” clearly means “established by the state,” and regardless if this was a mistake or that’s not what Congress intended, that is the law that Congress passed. Those black robes do not give the justices clairvoyant powers to know what each lawmaker who voted in favor intended. Just read the words on the paper. Their meaning is clear.
Next, Obergefell v. Hodges, about same-sex marriage. Because some states recognized gay marriage and others forbade it, James Obergefell married John Arthur in Maryland, then sued their resident State of Ohio to recognize their marriage. Because Arthur was terminally ill, they wanted Obergefell’s name listed as the spouse on his death certificate. That’s all this case was about. John Arthur died in 2013.
In an opinion that began, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” the Supreme Court struck down all state bans, declaring same-sex marriage to be the law of the land.
That is pure gobbledygook, typical of an opinion concocted within someone’s head than having any legal basis whatsoever. The Constitution does not mention marriage. The words “marry,” “married,” or “marriage” do not appear in it anywhere. There is no “right to marry” in the Constitution.
As such, the Tenth Amendment is clear: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Hear me plainly. I am not arguing against same-sex marriage. I am simply saying that the United States Constitution does not provide a right to marry, and as such, clearly gives the power to determine who can and cannot marry to the states. Yet only five people this time in black robes have dictated otherwise.
I understand that eliminating subsidies in the federal health insurance exchange would have been a calamity, and the excitement felt by those who seek same-sex marriage, their friends and families who know their pain, and those who opposed “#lovewins” have often not behaved in a very loving manner.
But if you don’t like the law, elect different representatives, and they can pass new laws. That’s democracy.
The Supreme Court justices are not elected, yet they are no longer following the plain meaning of the rule of law nor the U.S. Constitution. They are issuing opinions based on what they think in their own heads, not what the law says. If they are not bound by the Constitution or the rule of law, what limits their authority? That’s oligarchy, “a small group of people having control of a country.”
You may be very happy at the results of these opinions, and I respect that. But you might not be next time, and this is not democracy. This country determines its laws by representatives who are elected “of the people, by the people, and for the people,” not nine tyrants in black robes who force their wills upon the rest of us. Every American should be concerned about this abuse of power.
We revolted against the British monarchy. This judicial oligarchy deserves no less a response.
Respectfully…
MPM