Does Justice Scalia’s dissent help us understand political polarization in the U.S.?

Justice Scalia, dissenting

Supreme Court of the United States, No. 14-114, King v. Burwell

(The following paragraphs are not in continuity in the dissent.)

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.”

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.

The Court persists that these provisions “would make little sense” if no tax credits were available on federal Exchanges. Ante, at 14. Even if that observation were true, it would show only oddity, not ambiguity.

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,” 42 U. S. C. §18032(f)(1)(A). 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. Ante, at 11 (quoting §18031(e)(1)(b)). Pure applesauce. 

The Court has not come close to presenting the compelling contextual case necessary to justify departing from the ordinary meaning of the terms of the law. Quite the contrary, context only underscores the outlandishness of the Court’s interpretation. Reading the Act as a whole leaves no doubt about the matter: “Exchange established by the State” means what it looks like it means.

On the other side of the ledger, 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.

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.” Ante, at 15. 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.

So even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act. This is what justifies going out of our way to read “established by the State” to mean “established by the State or not established by the State”?

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. Ante, at 19. 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. That reality destroys the Court’s pretense that applying the law as written would imperil “the viability of the entire Affordable Care Act.”

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.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

It is entirely plausible that tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.

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. 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.

Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

Congress could also do something else altogether, entirely abandoning the structure of the Affordable Care Act. The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.

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.

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.

I dissent.


Justice Scalia is the Supreme Court's real loser in Obamacare ruling

By William Yeomans
Reuters, June 26, 2015

It is reasonable to suspect that Scalia's distaste for the Affordable Care Act, which likely inclined him to bring it down rather than save it, made his textual argument easier for him to make here.

William Yeomans served as Senator Edward M. Kennedy's chief counsel on the Senate Judiciary Committee and as a Justice Department official.


Political Polarization in the American Public

Pew Research Center, June 12, 2014

Overall, the public is divided over how far the government should go in providing health care. About half (47%) say the government has a responsibility to make sure all Americans have health care coverage, while 50% say that is not the responsibility of the federal government.

While half say it isn’t the government’s responsibility to make sure all have health care coverage, relatively few want the government to get out of the health care system entirely. Rather, 43% say it’s not the government’s responsibility to ensure health care coverage for all, but believe the government should “continue programs like Medicare and Medicaid for seniors and the very poor.” Only 6% of Americans go so far as to say the government “should not be involved in providing health insurance at all.”

Even among consistent conservatives, there is minimal support for the government having absolutely no role in providing health care. Three-quarters of consistent conservatives (75%) say the government should continue Medicare and Medicaid while just 20% think the government should not be involved in providing health insurance.



By Don McCanne, MD

In his dissent, Justice Antonin Scalia placed the importance of a negligible textual drafting error over the importance of the clear intent of the Affordable Care Act (ACA) to expand health care coverage to more people while trying to keep insurance affordable. With a full reading of both the majority opinion and Scalia’s dissent, it is clear that Justice Scalia’s opposition was based on ideology, with only token references to law. That is likely true with Justices Thomas and Alito as well, although they did not explain the basis of their votes.

When the same set of justices review the same laws in arriving at their decisions, yet quite consistently align themselves in two different camps, it is difficult to draw any conclusion other than that the decisions are being based primarily on ideology.

This divide also permeates not only Congress but the entire nation as revealed last year by the Pew Research Center in their comprehensive study of political polarization.

It is difficult for those of us who are ideologically inclined to support social justice goals, such as health care for everyone, to understand those who are opposed. Many try to give both views equal credibility, yet when standing for a principle such as universal health care, it is difficult to assign the same cogency to a view in opposition.

The Pew study suggests that there is greater agreement on the fundamental moral principles  such as ensuring health care coverage. Three-fourths of conservatives say that the government should continue Medicare and Medicaid. Yet half of the nation continues to support politicians who campaign using conservative and libertarian rhetoric.

We have been traveling the last ten days and have engaged in many conversations with individuals holding widely varying political views. Specifically on health care, those opposed to reform seemed to explain their positions through empty rhetorical memes such as those that are frequently present in the selected Fox News programs that are ideologically biased. In attempting to ferret out the reasoning behind these statements, it seemed to me that these individuals were not well informed on actual facts and policy implications, often admitting that they didn’t understand the details. This in no way is meant to criticize them but rather is an observation that many important principles of reform have not been widely distributed to the public.

But can we assume that Justice Scalia did not understand the adverse consequences that his warped interpretation of the intent of ACA would potentially have on the health of millions of Americans? Does it not represent an uncaring view when he ridicules the majority decision with terms such as “jiggery-pokery,” “pure applesauce” and “SCOTUScare”? It is very difficult to assume that there is no fundamental ethical transgression here.

Politicians frequently bury their advocacy for harmful public policies under rhetorical memes, thereby hiding their support for the rich and powerful. But the public at large? When they understand the issues, they do seem to support doing the right thing. But all too often it seems too easy for them to accept and spread the rhetoric assuming that there is not much more behind the memes which represent “the truth,” and thus it is not worth their time to learn more.

Living in Orange County, many of our friends are conservative. Most of them do support health care for everyone, just as, nationally, three-fourths of conservatives support Medicare and Medicaid. Wouldn’t it be nice if, after some introspection, caring conservatives selected candidates who do share their values on health care for all? Maybe some of the politicians already do and would gladly change their rhetoric if they thought their constituents agreed.