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“Antonin Scalia’s ‘Interpretive Jiggery-Pokery'”: With Increasing Frequency, Scalia’s Reputation Continues To Deteriorate

Two years ago tomorrow, the U.S. Supreme Court struck down the Defense of Marriage Act, much to Justice Antonin Scalia’s chagrin. Adding to his greatest-hits list, the far-right jurist called the majority’s rationale “legalistic argle-bargle.”

Today, as my msnbc colleague Irin Carmon reported, Scalia was once again in rare form today in his King v. Burwell dissent.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Writing on their behalf, Scalia accused the majority of acting in bad faith just to save the law. “So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare,” Scalia wrote in the dissent. He said Roberts’ reasoning was an act of “interpretive jiggery-pokery.”

No, seriously. Scalia actually used the phrase “interpretive jiggery-pokery.” It’s on page 8. Two pages later, he published the phrase “pure applesauce” as a complete sentence.

The justice has been embarrassing himself with increasing frequency, but Scalia’s reputation continues to deteriorate further.

The broader point, however, is less about the justice’s strange word choice and more about his increasingly twisted approach to the law.

The dissent in King is literally hard to believe. On page 17 of the majority opinion, Chief Justice John Roberts even mocks the dissenters for making the opposite conclusion that they drew three years ago:

“It is implausible that Congress meant the Act to operate in this manner.   See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all.”).

It’s no small detail. Three years ago, when the Affordable Care Act’s constitutionality was challenged, Scalia, Clarence Thomas, and Sam Alito read the law in such a way as to see all eligible consumers receiving subsidies, regardless of state or federal exchanges. In today’s dissent, these three had to read the law in the polar opposite way.

And therein lies the point: it seems as if the dissenting justices were so eager to rule against “Obamacare” that they were willing to ignore legislative history, legislative intent, context, and their own beliefs from three years ago.

I’m also reminded of this Linda Greenhouse piece from February.

Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text.  […]

Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” … Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s.

Today, Scalia threw all of that out the window, saying what matters isn’t the entire provision of law, but how he could take half a sentence out of context to undermine a law he doesn’t like.

“Words no longer have meaning,” Scalia whined today. In reality, words are still fine. What lacks meaning are Scalia’s unhinged complaints.

 

By: Steve Benen, The Madow Blog, June 25, 2015

June 26, 2015 Posted by | Affordable Care Act, Antonin Scalia, SCOTUS | , , , , , , , , | Leave a comment

“In A Terrible Predicament”: A Victory For Obamacare’s Challengers Will Be A Disaster For Republican Candidates

Once the conservative legal strategy that gave rise to King v. Burwell got off the ground, Republicans in Congress probably had no choice but to become cheerleaders for, or active participants in, the ensuing litigation.

The imminence of the decision in the Obamacare challenge, expected from the Supreme Court sometime this month, is exposing the terrible predicament the entire strategy created for the party.

The problems Republicans will encounter if they win King—eliminating billions of dollars worth of insurance subsidies—are fairly clear and have been detailed at length. But it is also quite conceivable that the whole effort will boomerang on the GOP  even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.

As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.

It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.

King, as Josh Marshall noted recently, “is a wholly-owned subsidiary of the Republican Party.”

That the case was conceived by conservatives and endorsed by Republicans has created an extensive paper trail tying the GOP to the consequences of a decision for the challengers. It has also forced Republicans to playact as if they can and will fix the problems that flow from an adverse King ruling. Initially the idea was to foam the runway for conservative justices eager to void the subsidies; it has become an accession to the reality that the public will hold Republicans to account for the ensuing chaos.

Among the pitfalls of the extended charade is that Republican presidential candidates will reject and condemn proposals to clean up a King mess if they even resemble constructive solutions.

“Things can’t be turned on a dime,” Senate Majority Whip John Cornyn told Politico. “People can run for president, but we’ve actually got to solve a problem.” Cornyn may have been thinking of his fellow Texan Ted Cruz, who wants to use King as a pretext to repeal all of Obamacare. But his discomfort with Cruz’ absolutism carries a whiff of inconsistency: Cornyn signed on to Republican briefs, first urging the justices to hear King and then asking them to void the subsidies. In January he eagerly anticipated that the Court would “render a body blow to Obamacare from which I don’t think it will ever recover.”

The promise of the King challenge has apparently faded since then. Republicans in Congress are quite likely incapable of solving the problem Cornyn was talking about in a way that pleases conservatives, and will be little better equipped if a Republican president discontinues the subsidies on his own. Six months ago, Republicans claimed excitedly that the path to repealing Obamacare outright ran through a victory in King. Now it seems that the best political outcome for Republicans would be to lose the case as conclusively and embarrassingly as possible.

 

By: Brian Beutler, Senior Editor, The New Republic, June 17, 2015

June 18, 2015 Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , , | 3 Comments

   

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