Monday, June 29, 2015

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

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

(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

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

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

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.


June 26, 2015
Justice Scalia is the Supreme Court's real loser in Obamacare ruling
By William Yeomans

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.)


Pew Research Center
June 12, 2014
Political Polarization in the American Public

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.


Comment by Don McCanne

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.

No comments:

Post a Comment