In Dissenting from King v. Burwell, Antonin Scalia Wields His Pen Like a Cudgel

untitled-110Agree or disagree with him, Justice Antonin Scalia will go down in history as one of the most outspoken and direct justices in Supreme Court history. In his scathing dissent from today’s ruling on the Affordable Care Act, he is particularly pointed in his criticisms of legislating from the Bench. Here are 13 of his best points, made in a way that only Jusice Scalia could word them.

In reference to the court’s ruling that despite wording in the law to the contrary, subsidies are available to anybody who gets healthcare through any government exchange:

The Secretary of Health and Human Services is not a State

In a broadside on SCOTUS’ previous ruling on the Affordable Care Act in 2012:

But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

On judicial overreach:

Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government”?

On the reinterpretation of the ACA:

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 conclusion that Congress used “by the State” to mean “by the State or not by the State.”

On the absurdity of the court’s parsing of the ACA:

Imagine that a university sends around a bulletin reminding every professor to take the “interests of graduate students” into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has “graduate students,” so that “graduate students” must really mean “graduate or undergraduate students”?Surely not. Just as one naturally reads instructions about graduate students to be inapplicable to the extent a particular professor has no such students, so too would one naturally read instructions about qualified individuals to be inapplicable to the extent a particular Exchange has no such individuals.

On the lack of intellectual rigor among his colleagues in the majority opinion:

Had the Court bothered to look at the rest of the Tax Code, it would have seen that the structure it finds strange is in fact quite common…consider, for an even closer parallel, a neighboring provision that initially makes taxpayers of all States eligible for a credit, only to provide later that the amount of the credit may be zero if the taxpayer’s State does not satisfy certain requirements…one begins to get the sense that the Court’s insistence on reading things in context appplies to “established by the State,” but to nothing else.

On the redefinition of a penalty into a tax in SCOTUS’ previous ACA decision:

Its famous individual mandate requires everyone to maintain insurance coverage or to pay what the Act calls a “penalty,”  and what we have nonetheless called a tax.

Asking how the words in the law could be unclear to anybody:

Could anyone maintain with a straight face that §36B is unclear? To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used.

On how it’s not the Court’s job to save the law from itself:

The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements “would destabilize the individual insurance market.” If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says.

Nor is it the Court’s job to save Congress from itself:

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.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

On what kind of government we have:

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.

 

On the pejorative Obamacare:

We should start calling this law SCOTUScare.

On dropping the mike:

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.

 

About author

Beau Sorensen
Beau Sorensen 2 posts

Beau is a lifelong conservative with 20 years of experience in the healthcare field. He currently lives in Provo with his wife and 4 children.

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