\u3cem\u3eKing v. Burwell\u3c/em\u3e and the Rise of the Administrative State

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways that no statute authorizes

The Role of the Modern Supreme Court

In The FederalistNo. 78, Alexander Hamilton examined the judicial department. He relied on that branch to safeguard the limitations drafted into the Constitution. While the judiciary is incontestably and beyond comparison the weakest of the three departments of power, he conceded, nonetheless, the constitutional limitations on legislative excess can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void