Basing their decision on “inartful drafting” tags the majority as “inartful dodgers”

VIRGINIA BEACH, Virginia—A majority of the Supreme Court in King v. Burwell got it wrong. Instead of applying the ObamaCare law as written, the 6-3 majority took a bold step and actually rewrote the law. A key part of the Affordable Care Act (ACA) says the subsidies are available only to Americans who enrolled “through an exchange established by the state”—a clear reason, as we argued in our amicus brief, that the subsidies should not be available to those in states without their own exchanges.

In this case, the High Court was simply asked to interpret four words when it came to exchanges: “established by the state.” The majority decided to ignore the meaning of the actual words used in the law—and rewrote it—saying the ACA “contains more than a few examples of inartful drafting” by Congress. In other words, the majority concluded that an exchange “established by the state” actually means an exchange established by anyone. The upshot: individuals, who sign up for a health insurance plan through the federal exchange program within Obamacare, and not just through a state exchange as the plain language of the law provides, can still receive federal subsidies. That brought a well-deserved, stinging rebuke from Supreme Court Justice Antonin Scalia in his dissent:

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“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. “We must always remember, therefore, that our “task is to apply the text, not to improve upon it . . . So it [this Court] rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

Justice Scalia is absolutely correct. Here’s what’s troubling: First, President Obama overstepped his authority. In implementing badly flawed IRS regulations, the president launched a dangerous and damaging power play continuing his make-it-up-as-we-go approach to implementing ObamaCare. Then, a legal challenge was filed and the case involving the executive overreach ended up before the U.S. Supreme Court—before nine unelected judges. And instead of acting as an independent judiciary, the high court launched into legislative mode by rewriting the law—something it did not have the constitutional power to do. Many of those in Congress, which does have the constitutional authority to do just that—write and rewrite the law—believe the Court made a significant error. “I think that they’ve done a great disservice to the country because they’re rewriting laws at the bench,” said Rep. Paul Ryan, Chairman of the House Committee on Ways and Means, who also called the decision a “grave injustice” to the rule of law. The decision is the second time a majority of the Court upheld ObamaCare—a decision two years ago that kept the individual mandate intact. Justice Scalia says those two decisions will surely be remembered as “somersaults of statutory interpretation.” The two ObamaCare decisions, as Justice Scalia correctly concludes, will go down in history as “the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” At a time when we have a president who is dedicated to usurping power that is not his, and now, a Supreme Court that rejects its constitutional boundaries, it’s clear that the enforcement of the separation of powers—as envisioned by our Founders—is now more challenging and more important than ever. And that is something that should be of concern to all Americans. Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law, and a New York Times bestselling author. Readers may write him at ACLJ, PO Box 90555, Washington, DC 20090-0555