In an era where the legal establishment is increasingly openly hostile to and contemptuous of asset holders and business owners in general, what does this mean for the average homeowner, the average small business owner and even the regular investor?
That's because the decisions – King v. Burwell, the ruling reaffirming the Affordable Care Act (the "ACA") released Thursday, and Obergefell v. Hodges, the ruling extending same-sex marriage recognition nationally released Friday -- reaffirm the growing unpredictability of legal interpretations from the nation's highest court. That means that when the law becomes uncertain, when its enforcement becomes dependent on hope instead of the law, the power of the law diminishes and the power of its enforcers grows in inverse and perverse proportion.
Whereas not too long ago contracts and statutes would have been interpreted, and enforced, according to the "four corners" of the document (that is, what's contained on the paper and nothing more), rulings from the Supreme Court invite a new level of sophistry from people determined to argue that words are to be accorded meanings that are something different, if not something completely opposite, from those intended by their writers.
“The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).
King v. Burwell, pp. 14-15 (emphasis added in bold).
“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.
King v. Burwell, p. 20 (emphasis added in bold).
“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”
Obergefell v. Hodges, p. 2 (Roberts, C.J., dissenting)
“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? “It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York,198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role.”
Obergefell v. Hodges, p. 3 (Roberts, C.J., dissenting)
So when the court rules that a law will be rewritten so it may "work," the finance community should be alarmed. Not because it agrees or doesn't agree with the Affordable Care Act. Rather, because now the confidence that one is obeying the law and can enforce legal rights has been greatly upset.
Think this is an overreaction? Consider that the legal profession is dominated -- run by -- activists who increasingly believe in "economic justice." Such phrases should alarm readers. Simple concepts require no adjectives to modify them, not unless the purpose is to convey the opposite meaning, and so it is with "economic justice." The reality is a legal establishment, now firmly ensconced in the judiciary and among regulators and prosecutors, which is not merely overtly hostile to business in general and "the rich" (read: anyone with assets) in particular, but believes it is now emboldened -- no, empowered -- to go after these sectors with an impunity borne by the delusion that their end justifies any means, and the confidence that their allies will allow them to act unimpeded and their targets have neither the will nor the power to resist.