WASHINGTON -- Backers of the Affordable Care Act were treated to twin delights on Thursday: First, the law was upheld, so nobody will be kicked off their insurance by the Supreme Court. And second, the dissent was written by Justice Antonin Scalia who, when angry (which is always), has a penchant for literary drama.
"Words no longer have meaning," Scalia wrote in the dissent he read from the bench.
They might not, but that didn't stop Scalia from piling them on top of each other in an angry heap. Here are some of the choicest of his meaningless words. (The attempt by opponents of Obamacare to argue that the law didn't say what it very plainly did say was silly to begin with; that it was rejected means that words do, in fact, have meaning. But this isn't a place to argue with Scalia. Let's just let him rip.)
"Today's interpretation is not merely unnatural; it is unheard of," he wrote. That is, strictly speaking, true, since this was a new case.
"We should start calling this law SCOTUScare."
"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," Scalia wrote, again accurately, though not in the way he meant.
"The Court's next bit of interpretive jiggery-pokery..."
"Pure applesauce," he insisted. "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.'"
"Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges," Scalia writes, forgetting that the people who actually wrote the law were not only available to provide evidence of their intent, but did so.
Pause for a moment to consider what would have to be true for Scalia's argument to work: The authors of the Affordable Care Act would all have to be lying about their true intent on subsidies. While they claimed in public that the law would give subsidies to everyone who qualified, secretly they were drafting the law to restrict it to just people in states that set up exchanges. And, more bizarrely, they would have engaged in a collective conspiracy to keep their true intent hidden from the public until it was discovered by conservative activists, who then used that it to challenge the law. If that really was their intent, why, then, would the authors of the law go to court to defend the precise opposite of their true, secret intent to restrict subsidies only to states that set up exchanges?
It sounds like applesauce, but Scalia appears to have fully internalized the idea. For a window into the way his mind works on this score, here's how he frames the behavior of Republican governors and legislators who declined to participate in Obamacare: "Worst of all for the repute of today’s decision, the Court’s reasoning is largely self-defeating. The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges? And wouldn’t that outcome satisfy two of the Act’s goals rather than just one: enabling the Act’s reforms to work and promoting state involvement in the Act’s implementation? The Court protests that the very existence of a federal fallback shows that Congress expected that some States might fail to set up their own Exchanges. So it does. It does not show, however, that Congress expected the number of recalcitrant States to be particularly large. The more accurate the Court’s dire economic predictions, the smaller that number is likely to be."
"What a parody today's decision makes of Hamilton's assurances to the people of New York," he wrote.
"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."
Scalia, of course, is a much better writer than he is a consistent thinker. Words might not mean anything, but Chief Justice John Roberts dredged up some of Scalia's own from his last Obamacare dissent.
"Without the federal subsidies... the exchanges would not operate as Congress intended and might not operate at all," Scalia and the dissenters wrote at the time, back when they wanted the entire law to be crushed. Now that he's only going after the subsidies, it's clear as day to him that Congress didn't intend what he said they intended last time.
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