Well certainly not the outcome expected, one would have thought that the constitutional rule of “apportioned” would have been the only test required to render the “subsidies” (King v. Burwell) a dead issue. Having read the court’s opinion and its rambling and esoteric thought process it’s fairly clear that given the current tenor of the court no challenge, to any law, will have a favorable outcome.
It may also be the case that counsel must do a better job crafting arguments given the situationally-flaccid Justices. It’s absolutely appropriate to repel judicial activism however, in the case of the Supreme Court, I’d argue that is exactly the purpose of the court. The appellate jurisdiction where insuring that constitutional relevance and/or standards are to be upheld.
To founder, as C.J. Roberts appears to do, that somehow the Courts only function is to ponder or construct reasons for why a law/issue should be sustained vs. striking those (or the whole) components of the law that are unconscionable, on strictly Constitutional terms, that render the whole unsupportable places the ultimate constriction upon the conduit through which the Courts most fundamental processes must flow. In other words, using the Courts current standard, any provision of a law will survive a legal challenge so long as the Justices are able to craft a standard for why it should, regardless of its overall defect.
At this point the Court is now becoming an advocate of the legislative process when, at the very minimum, it must be the filter of that very same process otherwise any law, for any reason, accumulating sufficient votes for passage becomes the only standard to meet. And this, for a Constitutional Republic and as we are witnessing, is simply not survivable.
Curtis C. Greco, Founder
