Last week’s decision in King vs. Burwell, in which Chief Justice John Roberts magically conjured ambiguity out of straightforward language, has troubling implications beyond the further erosion of the separation of powers. From ancient Athens to George Orwell, the violation of the integrity of language by sophistical legerdemain has been recognized as the eternal enabler of political tyranny.
The 6-3 decision, which legitimized giving federal subsidies to people living in states without an exchange, obviously contradicts the law as written. What the majority of the Court did was to rewrite legislation in clear violation of the Constitution’s separation of powers, which gives the law-making power to Congress. As Justice Scalia wrote in dissent, the majority “ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. They made Congress, not this Court, responsible for both making laws and mending them.”