http://www.nationalreview.com/node/420330/print King v. Burwell and the Law
By Yuval Levin — June 25, 2015
On June 9, in a speech before an association of Catholic health-care administrators, President Obama made the case for Obamacare in terms no doubt intended in part to shape the public debate around the case of King v. Burwell, which the Supreme Court decided today. The case involved the question of whether it is lawful to provide through exchanges created by the federal government subsidies that the law said should be provided through exchanges created by the states. The letter of the law would seem to suggest not, so the president made a concise and forceful version of the case that Obamacare’s defenders have ultimately had to resort to in response, which is that this particular law shouldn’t be thought of as a law. He said:
So five years in, what we are talking about is no longer just a law. It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare. This isn’t about myths or rumors that folks try to sustain. There is a reality that people on the ground day to day are experiencing. Their lives are better. This is now part of the fabric of how we care for one another. This is health care in America.
Arguments like this, which seek to treat Obamacare as deeply entrenched in the fabric of American life and so no longer properly a subject for debate, have been part of the public justification for this law from the very moment of its enactment. But the president’s remarks emphasized the super-legal status implicitly afforded to Obamacare under this line of reasoning, which is an element of the argument that has been especially prominent and important in the debate surrounding the King case. Obamacare should be understood not as a particular statute implemented in a particular way, this argument suggests, but as equivalent to the broad desire to improve the health-care system, or indeed as equivalent to that system itself.
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