Our Court system (like our regulatory bureaucracy) needs to be torn out root and branch. It is a cancer in our nation that no longer functions to maintain the rule of law. We are now a nation of men. Yesterday's two horrendous decisions by the Supreme Court offer yet more proof, if more is needed. In Texas Department of Housing v. The Inclusive Communities Project, the Court considered whether disparate impact theory can be used, standing alone, to establish racism under the Fair Housing Act. In King v. Burwell, the Court considered whether certain language in the statute limited federal subsidies to people in states that had established their own health care exchanges. Both cases involved "statutory construction."
Centuries old rules of statutory construction hold that, if a law is clear and unambiguous on its face, then the Court should construe it as written. If the law is ambiguous, than the Court has several methods to apply to construe the statute, including looking to legislative history. What the Court cannot do with any legitimacy is jettison those practices in order to insert their own policy preferences, in essence, unconstitutionally rewriting laws to suit their own ends. Yet that is what the Court did in yesterday in the above two cases that will substantially impact our nation.
In Texas v. The Inclusive Communities Project, the issue was whether disparate impact theory can stand alone as proof of racism in FHA cases. Since the 1960's, when someone dreamed up disparate impact theory, the left has seized upon it to prove institutional racism without the slightest proof of any actual racism. It is a horribly distorting theory that has been used in every possible scenario, from employment to housing to banking and many others. Indeed, it is that theory which, more than anything else, drove our nation into the Great Recession from which we have still not recovered. The theory is this - if a policy or simple selection shows that it is disparately impacting upon one of the left's victim classes, regardless if the policy is completely color blind and based on legitimate and validated concerns, such as, let's say, credit rating standards, then the institution can be held guilty of racism. No single legal theory has done more damage to our nation, nor been more abused by the left. It is not a theory that punishes racism, it is a theory that makes every business race centric and punishes legitimate standards.
In 2010, the Supreme Court held disparate impact theory unlawful in the employment context in Rici. It appeared that the Court was on its way to removing this cancerous theory from litigation. At least until the Texas case yesterday, when the Supreme Court held that disparate impact can be used in litigation against the FHA. You can read Justice Thomas's dissent beginning at page 32. The Fair Housing laws are silent on whether disparate impact can be used to establish a claim of racism. The legislative history is crystal clear that a showing of actual racism, "disparate treatment," is necessary to bring suit under the Fair Housing laws. The activist wing of the Supreme Court, this time without Chief Justice Roberts, ignored that legislative history to uphold use of disparate impact theory. What a travesty.
So the race hustlers can chalk up a huge win compliments of an out of control Court that is no longer a judicial body, but rather a highly politicized third policy arm of our government. The people the race hustlers purported to help, are not going to see it as a win, though:
Michael Skojec, a lawyer who filed a brief on behalf of Texas’s position, says what the country should be “trying to do is get people not to consider race, or think of people in racial terms”: “The disparate-impact concept encourages and requires people to think about race in every decision.” He points out that the city of Houston has over 43,000 families on its waiting lists for affordable housing, almost all of them black. But forcing the Texas Housing Authority to change its tax-credit allocations will mean that most of them will have to wait far longer to get a better place to live.
Then in yesterday's other obscenity, King v. Burwell, the activist wing of the Court, this time with Chief Justice Roberts, took it upon themselves to rewrite the plain language of Obamacare to allow the law to survive. This from Justice Scalia's well grounded dissent:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” . . . Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
. . . .
Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual “shall” maintain insurance or else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. . . . The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. . . . Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.
This is no longer a nation of laws. And unless the Courts, now the most dangerous branch of government, are uprooted and we start over with reforms in the nature of those proposed by Newt Gingrich, this nation will be forever dragged further and further away from the Constitutional framework drafted by our Founders into an activist nightmare.