A few hours before my weekly appearance on The Hugh Hewitt Show, the Supreme Court leaped to the rescue of Obamacare yet again, with not only designated swinger Anthony Kennedy but also Chief Justice John Roberts joining in the 6-3 decision. That's where Hugh and I began:
HUGH HEWITT: Here to tell you that Obamacare is not going to be amended or repealed until we get a new president... The federal subsidies are going to stay just as they are. Joining me to talk about this and the much more pressing issues, actually much more pressing issues of terrorism in the world, none other than Columnist To the World Mark Steyn. You can read everything Mark writes over at www.steynonline.com. Mark, your first reaction to the 6-3 decision today..?
MARK STEYN: A disgraceful decision. As you know, Hugh, I'm not a believer in Supreme Courts that are as supreme as America's Supreme Court is anyway. I don't believe there's any reason why free people should be ruled by nine black-robed regents. I don't accept that proposition. But if you do, then those nine judges have to exercise their power with a certain humility. The idea that words no longer have plain meaning, that the words "established by the state" can now mean "established by ...whatever", I think is very disturbing - not just for health care, which is a disaster in this country, but for almost any law. I mean, essentially if they are now in this interpretive business entirely disconnected from the plain meaning of language, then I don't see why any statute since the first settlers got here couldn't actually be rewritten on the basis they did with this one.
The Chief Justice, writing for the majority, explained his reasoning thus:
In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the act in a way that is consistent with the former and avoids the latter.
Even if that assertion is correct (and it's by no means clear that it is), in his dissent, Antonin Scalia responded, "It's up to Congress to design its laws with care, and it's up to the people to hold them to account if they fail to carry out that responsibility."
MS: That's why I think it's extremely disturbing for the rule of law, and for a system of checks and balances... Roberts and the majority purport to divine Congress' intent and to say that ...these four words were inappropriately phrased. In fact, as Scalia pointed out, they went to quite a lot of trouble to fine-tune what they meant by "established by the state". At a further point in the law, they go on to explain that if a territory wishes to set up its exchange - for example Guam or the U.S. Virgin Islands or whatever - then for the purposes of the law, they, too, shall be covered by this phrase "established by the state"... The people who wrote the law gave these four words some thought, and they decided that the words "established by the state" meant states, obviously, but they also meant territories for the purpose of this legislation. Nowhere do they say it's the Secretary of Health and Human Services or the World Health Organization or the U.N. Secretary-General or Justin Bieber or anybody else. They were actually quite specific about that.
Or as Scalia remarked at the end of his mordant dissent:
We should start calling this law SCOTUScare.
- which, a Hugh noted, got a laugh from the Court.
HH: Now I got a pretty interesting email from one of my law partners, Mark, who is a Democrat, saying look, clearly what's going on here is that Roberts realized the toxicity in the political system has reached such a high level that he imperils the Court if he strikes down Obamacare, and that he's leaving it to the political branches to fight it out and trying to keep the Court in place. What do you make of that argument?
MS: Yeah, we had that argument last time round when he did his previous pretzel ruling ...that eventually decided it was perfectly lawful to force every single American to purchase a product from a nominally private company. And we were told that he did that because the toxicity of the decision to strike that down would damage the Court's reputation. So now again, with a care for the Court's reputation, he's twisted himself into a pretzel again. Presumably the same considerations will apply when it comes to same sex marriage. In that case, there is no point to a Supreme Court. If they can't take the heat of decisions that go against the zeitgeist or the popular mood or whatever fancies and foibles are in the air, then there is no point to a constitutional court. If he's saying we can't take the heat, fine. Then let the legislators who have to account to the citizens, let them take the heat. What polling booth do you go to to vote out John Roberts? What polling booth do you go to to vote out Anthony Kennedy? Scalia's line is not a joke. It is SCOTUSCare... The judicial branch is in effect now actually legislating and broadening the terms of the law. And that is something that ought to be extremely disturbing to anyone, particularly a constitutional court, but to anyone who gives any thought as to whether we're a land of laws or a land of men.
As to actual health care itself, and the "improvements" in the insurance market that Roberts was so anxious to save, I pointed out to Hugh the obvious - that "insurance" in this country now bears no relationship to the likelihood of you getting ill nor to the likely cost of whatever it is you might get. A year's "insurance" against ill-health costs about as much as three serious illnesses would in any other advanced nation. Meanwhile, the "deductibles" - the part you have to pay yourself - are higher and higher but purchase less and less, because under RobertsCare government and insurers are setting rates for routine procedures that are entirely divorced from what those procedures actually cost:
MS: I have a high deductible plan. I went to a hospital here. I had an X-Ray and an MRI. And under my high deductible, I had to pay $4,200 dollars for that, because the old 40% cash discount and everything is all gone now. $4,200. I could have flown first class to Bermuda, had it done at the King Edward VII hospital in Bermuda, flown back first class, and still have come out $2,000 ahead. And that is the insanity of this - that we now have neither a public system nor a private system, but some monstrosity of a pushmepullyou that has been enabled not only by the President and a feckless Congress with its thousand page unread laws, but now from the nine robed regents who are supposed to be the masters of the universe at untangling all the messes that the sleazy politicians make.
Hugh, being an optimist, thinks the GOP will ride to the rescue. I was less certain:
MS: I'm getting the sense now that what will happen to squishy finger-in-the-windy Republicans is that more and more of them will start to talk less and less about repealing, and more and more about figuring out a way to live with it.
If you needed another reason not to let the Government run your health care, Hugh and I also discussed the news that the Chinese have hacked into the federal computers and waltzed off with the personnel records of 30 million federal bureaucrats (a remarkable number in itself, by the way):
MS: These are the 30 million who matter. I mean, if someone gets, if the Russians or the Chinese or whoever get my personal data, they can't use it to access a government building in Washington. The information that they've taken from 30 million key Americans will prove very useful to China and to whoever they decide to share it with...
HH: I was the general counsel and deputy director there. I think they got all that. I think they got the name of every scientist at Livermore.
We also found time to discuss ISIS and its ingenious use of social media:
MS: What we've got here is medieval fanatics who use 21st Century technology better than Obama and the rest of the West does. And if you don't think that that's not going to have some serious consequences sometime down the road, then you know, just stay in your little bubble and watch your cat videos until the mushroom cloud goes up.
HH: Yeah, they used James Cameron-level underwater video photography to film the drowning of their five tortured people.
The world turns. At an American gas company in France, a worker is decapitated and the flag of Islamic imperialism raised. On the beaches of Tunisia, terrorists kill dozens of western tourists on sunbeds. That's a first: the civilized world is dying on a sunbed. Life's a beach, and then you die.
You can find the full Hewitt/Steyn interview here.
