‘We Should Start Calling This Law SCOTUScare’ And 20 Other Epic Scalia Burns
The Federalist Staff
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The Supreme Court ruled 6-3 in favor of the Obama Administration in King V. Burwell that the Internal Revenue Service may extend subsidies to health insurance coverage purchased through exchanges established by the federal government despite the language of the Patient Protection and Affordable Care Act that such subsidies were limited to states.

Associate Justice Scalia, whose dissents are always a fun read, was openly disdainful of the reasoning used by the majority to arrive at its conclusion. Here are 21 passages that capture his disappointment.

1) “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

2) “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

3) “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

4) “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.”

5) “The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Afford- able Care Act!) Yet the opinion continues, with no semblance of shame, that ‘it is also possible that the phrase refers to all Exchanges—both State and Federal.’ Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!)”

6) “Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government’?”

7) … “’State’ means ‘each of the 50 States and the District of Columbia.’ 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State.”

8) “It is bad enough for a court to cross out ‘by the State’ once. But seven times?”

9) “It is probably piling on to add that the Congress that wrote the Affordable Care Act knew how to equate two different types of Exchanges when it wanted to do so. The Act includes a clause providing that ‘[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State’ for certain purposes. §18043(a) (emphasis added). Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange.”

10) “Faced with overwhelming confirmation that ‘Exchange established by the State’ means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible con- clusion that Congress used ‘by the State’ to mean ‘by the State or not by the State.’”

11) “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”

12) “Pure applesauce.”

13) “For its next defense of the indefensible, the Court turns to the Affordable Care Act’s design and purposes.”

14) “Having gone wrong in consulting statutory purpose at all, the Court goes wrong again in analyzing it.”

15) “Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’”

16) “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. 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 ‘[o]ur task is to apply the text, not to improve upon it.’”

17) “More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers.”

18) What a parody today’s decision makes of Hamilton’s assurances to the people of New York: ‘The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.”

19) “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.”

20) “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever 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.”

21) “I dissent.”

Photo By SteveMasker
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