Friends of democracy and the rule of law will remember King v. Burwell as one of the worst cases in recent memory. However, every cloud does indeed have its silver lining, today taking the form of a devastating dissent by Justice Antonin Scalia. While the dissent is worth reading in its entirety, below are ten of his sharpest condemnations of the Court’s “jiggery-pokery.”
10) “The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.”
9) “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.”
8) “The Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either understanding of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.”
7) “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.’”
6) “The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the ‘State that established the Exchange.’ Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the ‘interests of qualified individuals’ into account when selecting health plans. Pure applesauce.”
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. (Understatement, thy name is an opinion on the Affordable 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.’ (Impossible possibility, thy name is an opinion on the Affordable Care Act!)”
4) “Let us not forget that the term ‘Exchange established by the State’ appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?”
3) “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”
2) “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.”
1) “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, this Court revised major components of the statute in order to save them from unconstitutionality […]We should start calling this law SCOTUScare.”
As is so often the case, Justice Scalia got it exactly right.
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