(Reuters/Larry Downing)

"Moops" now, "Moops" forever: The sad, final yawp of the defeated King v. Burwell mastermind

Michael Cannon argues that by losing at the Supreme Court, he actually won, because blah blah something whatever


Simon Maloy
July 10, 2015 8:34PM (UTC)

If you read the Supreme Court’s 6-3 decision in King v. Burwell, you probably came away thinking that the plaintiffs and the conservative activists who dreamed up the legal challenge lost. That’s because they did. The plaintiffs argued that the Affordable Care Act was written in such a way that the government could not provide insurance subsidies to people in the majority of states. The Court disagreed and the law emerged unscathed. But according to the Cato Institute’s Michael Cannon, one the legal minds behind the King challenge, losing the case doesn’t actually mean that they “lost the case.”

As Cannon argues in an Op-Ed for the Washington Examiner, by losing at the Supreme Court, he and his fellow Obamacare opponents actually won a great victory over Obamacare:

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Obamacare supporters are mistaken if they think the Supreme Court's King v. Burwell ruling settles the issue. Even in defeat, King threatens Obamacare's survival, because it exposes Obamacare as an illegitimate law.

You’re probably confused right now. I know I am. The law was passed by Congress, signed by the president, and has now survived two run-ins with the conservative Supreme Court. Under our system of government, that’s typically a fairly ironclad standard for “legitimacy.” So let’s let Cannon try and explain what the hell he’s talking about:

Yet President Obama and the Supreme Court now have amended the ACA to the point where it has been transformed into something no Congress ever enacted — indeed that no Congress ever had the votes to enact. The executive and the judiciary have effectively repealed the ACA and replaced it with "Obamacare," which enjoys no such legitimacy.

Ah, okay. He’s just restating the argument at the center of the King case and asserting its obvious truth even though the Supreme Court tossed it aside. And, according to Cannon, the fact that the Court rejected it only proves that six of the nine justices are in on the dastardly scheme to illegally force Obamacare on the innocent public. “By overriding the operative language of the statute,” Cannon writes, “the Supreme Court colluded with the president to impose taxes and entitlements that no Congress ever approved.” It’s all one great big god damn conspiracy, and everyone is in on it.

Not that it really matters at this point, but this is as good an indicator as any of how the entire King v. Burwell case rested on cynical, bad-faith argumentation. Cannon’s position is that it doesn’t really matter how the Court ruled. If they’d struck down the subsidies, Michael Cannon and friends would have emerged victorious. The Court didn’t do that, and Cannon is still claiming victory. Score one for motivated reasoning. The only thing truly surprising about Cannon’s Op-Ed is that the name “Gruber” doesn’t appear even once.

Anyway, here’s Cannon’s big finish:

The Supreme Court did not lose its legitimacy with King v. Burwell — it has made worse mistakes. Obamacare did. Having been rewritten over and over by the president and the Supreme Court rather than Congress, Obamacare cannot claim to be a legitimate law.

Remember, Cannon’s position going into the case was that Obamacare was illegitimate, that the president had illegally modified the law contrary to the intent of Congress. The Supreme Court disagreed, and Cannon’s takeaway from that is that Obamacare lost the legitimacy he already accused it of lacking. “Obamacare cannot claim to be a legitimate law” is a meaningless statement. It has every trapping of legitimacy. But if Cannon wants to claim a moral victory, or whatever this is, from the wreckage of his pet court case, that’s fine. He lost badly in every way that matters, and the Affordable Care Act is still the law of the land.


Simon Maloy

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