Supreme Court Justice Antonin Scalia on Thursday was joined by Clarence Thomas and Samuel Alito in slamming the court’s 6-3 majority for using “jiggery-pokery” to keep alive Obamacare, President Obama’s signature health-care law.
In a scathing dissent to the majority that said exchanges “established by the state” could also, in context, mean exchanges established by the federal government, he hinted at something going on behind the scenes.
“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,” the dissent said.
Scalia wrote: “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!).
“The court claims that ‘the context and structure of the act compel it to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.'”
Context, however, Scalia wrote, “is a tool for understanding the terms of the law, not an excuse for rewriting them.”
Chief Justice John Roberts’ majority opinion, he wrote, “goes beyond giving words bizarre meanings: it leaves the limiting phrase ‘by the state’ with no operative effect at all.”
In fact, he said, the ruling has to “cross out ‘by the state’ … seven times.”
His summation? The majority used “interpretive jiggery-pokery.”
The dissent said the reasoning by the majority was “quite absurd.”
“And the court’s 21 pages of explanation make it no less so,” it said.
“This case requires us to decide whether someone who buys insurance on an exchange established by the secretary [of Health and Human Services] 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. … An individual must enroll in an insurance plan through an ‘exchange established by the state.'”
They pointedly noted the federal exchange was not a state exchange.
“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 that to use the words ‘established by the state,'” the dissent said.
Reacting to the decision, Fox News’ Senior Judicial Analyst Andrew Napolitano said Roberts “will continue to undermine his own credibility as a fair-minded jurist because he has reached to bizarre and odd contortions in order to save this statute twice.”
He called Roberts’ ruling “weird and unpredictable.”
Scalia wrote: “We should start calling this law SCOTUScare.”
See Napolitano’s comments:
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WND reported Obama was accused of trying his hand at “bullying” the Supreme Court ahead of the decision.
Fox News reported Obama was in Europe for a summit when he said it was a case the high court “should never have taken up.”
Obama also claimed it has been well-documented that Congress never intended to exclude people who got their insurance through the federal exchange.
But Jay Sekulow of the American Center for Law and Justice told Bill Hemmer in a Fox News interview: “I think this is almost like a bullying technique. The president here is upset because the Supreme Court took it. Well, there was a conflict in the circuits and when the circuits are in conflict with each other, the Supreme Court resolves the conflict.”
Sekulow said the president “keeps saying, well, it’s just four words,” “established by the state.”
But it’s four words, he said, “that carry billions of dollars, hundreds of millions of dollars of subsidies with them and it affects the way his law’s being implemented, and IRS – this is the part that everybody forgets – the IRS was the one who changed this rule.
“It’s like a political campaign against the Supreme Court here. … This president has shown a pretty consistent disregard for the Supreme Court when he doesn’t like their opinion,” Sekulow said.
“I think here’s what he’s doing. He’s trying to say if the Supreme Court upholds the law as it’s actually written … then you the America people blame the Supreme Court. The correct response is maybe someone should have read this law before they passed it.”
See the Sekulow interview:
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Scalia wasn’t finished.
“Equating establishment ‘by the state’ with establishment by the federal government makes nonsense of other parts of the act. The act requires states to ensure on pain of losing Medicaid funding, that any ‘exchange established by the state’ uses a ‘secure electronic interface to determine an individual’s eligibility for various benefits (including tax credits). … How could a state control the type of electronic interface used by a federal exchange?” he asked.
Even in the majority opinion, he wrote, “each of the provisions mentioned by the court is perfectly consistent with limiting tax credits to state exchanges.”
“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 with 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,” the dissent said. “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.”
He said, “The court’s decision reflects the philosophy that judges should endure whatever interpretive distortion it takes in order to correct a supposed flaw in the statutory machinery.”
Scalia said 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 unelected will of our lawmakers. … This court ‘has no roving license … to disregard clear language simply on the view that … Congress ‘must have intended’ something broader.'”
Scalia said the court “should have left it to Congress to decide what to do about the act’s limitation of tax credits to state exchanges.”
He then criticized Roberts for his majority opinion three years earlier that changed “penalties” in the law to “taxes” so that the law would be constitutional.
“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. The act that Congress passed provides that every individual ‘shall’ maintain insurance or else pay a ‘penalty.’ The 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.”
That ruling and the current one “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.”
Related stories:
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Scalia slams ‘jiggery-pokery’ used to save Obamacare
‘Out-of-control act of judicial tyranny’
Former chief of surgeons group calls Obamacare ‘fascism’
Obamacare subsidies upheld by Supreme Court
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