U.S. Supreme Court Chief Justice John Roberts was lambasted as a turncoat, traitor and betrayer by conservatives when he cast the deciding fifth vote in 2012 upholding the constitutional soundness of the Affordable Care Act. This allowed states and the federal government to put in an array of measures to fully implement the act. That didn't end the matter. Conservatives dug deep and found a provision buried in the law that purports that only states and not the federal government can set up insurance exchanges. The case is King vs. Burwell. If the court upholds the challenge it would nullify the subsidies in the form of IRS approved tax credits that the millions who signed up for coverage in those states receive.
The case is far more than just another of the never ending challenges to the act. It's a politically loaded challenge to President Obama. The GOP and conservatives bank on its four trump cards on the court, Clarence Thomas, Antonin Scalia, Samuel Alito, and yes Roberts, to gut the act.
They may get their wish this time with Roberts. Despite his momentary defection in upholding the law three years ago, he and the other three justices, along with Anthony Kennedy, have turned the number 5 to 4 into a fine art. That's their reflexive vote against any and every Obama administration position, initiative, or piece of legislation that's challenged and winds up before the court.
In the Hobby Lobby ruling they, and Kennedy, ruled that privately-held corporations can refuse on religious grounds to cover the cost of contraceptives for its employees was typical. It was a blow to the Act. The ruling, though, was the standard template for Robert and the others war on Obama. They, and Kennedy, have ruled more than a dozen times that Obama has allegedly badly abused his constitutional authority in decisions, appointments, and court appeals. They undergirded the GOP's relentless gripe that Obama is a serial constitutional usurper.
In a majority of cases, Roberts and the other conservatives have ruled against the Obama administration's position on the big ticket issues of voting rights, affirmative action, corporate and property rights, and union and environmental protections. Their assault has had little to do with the law, and everything to do with politics and ideology. Their decisions put bluntly against him are blatant partisan political pandering. Roberts and the other three justices were appointed by Republican presidents. The other four justices that almost always back the Obama administration in their votes on court cases were appointed by him or other Democratic presidents.
On the presidential campaign trail in 2000, George W. Bush was asked if elected what kind of judge he'd look for and nominate. He didn't hesitate. He pledged to appoint "strict constructionists" to the court and specifically named Thomas, Antonin Scalia and William Rehnquist as the judges that perfectly fit that description. By then the three had already carved out a hard line niche as three of the most reflexive, knee jerk, reactionary jurists to grace the court in decades.
In the King vs. Burwell case, the ultra-conservative American Enterprise Institute and the litigious Competitive Enterprise Institute are running the point on the case. They bank on two things to get the court to hack saw the act. One is the inherent partisan political bias of Roberts and the other three judges. The other is that they will adhere unbendingly to the narrow of narrowest strict constructionist reading of the law. They will hold that the four words "established by the states" which is in the wording of the act makes no mention of the federal government establishing buyer exchanges complete with subsidies. The Obama administration correctly argues that the court should follow the plain sense text of the law and prior precedents which clearly permit tax credits to individuals whether the exchanges are state established or established by the federal government.
If the judges, joined by Kennedy, indeed act according to the expected script, it will be another notch in the GOP's hit plan on Obamacare. Beyond that it will stand as yet another in the long train of crude, cynical political ploys to inflame millions of Americans and stoke hostility to Obama and the Democrats. This could sharpen the already considerable political edge the GOP got when it grabbed the Senate and tightened its grip on the House in the 2014 midterm elections. A court victory on Obamacare could give it even more momentum in the run-up to the 2016 presidential elections.
The big loser in this cynical knock at Obama will be the millions who potentially could lose their coverage in the 34 states with federally established exchanges. That's of little importance to the GOP and their reliable four justices who have waged ruthless war against Obama. The issue for both in this case as always is not Obamacare, but Obama.
Earl Ofari Hutchinson is an author and political analyst. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. His forthcoming book is From King to Obama: Witness to a Turbulent History (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is an associate editor of New America Media. He is host of the weekly Hutchinson Report Newsmaker Hour heard weekly on the nationally network broadcast Hutchinson Newsmaker Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson