“Antonin Scalia Defeated — By Antonin Scalia”: He Had His Own Previous Arguments Turned Against Him
Justice Antonin Scalia did not simply lose today’s key ruling on the federal health insurance subsidies for the Affordable Care Act — he had his own previous arguments turned against him.
The majority opinion issued today, written principally by Chief Justice John Roberts — whose crucial vote previously upheld Obamacare back in 2012 — illustrated the idea of the insurance subsidies being an integral part of health care reform itself.
And the absurdity of just striking out subsidies for people living in states with federally run exchanges — as Scalia and his fellow dissenters insisted had to be done under the law — was illustrated by citing… Antonin Scalia, from his earlier efforts to stamp out health care reform.
It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 […] (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) […] (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).
That is, Roberts and company cited the dissent in the first major Obamacare case, from 2012, when the dissenters — Scalia being one of them — tried to say that pretty much each every single facet of the Affordable Care Act was not only wrong but unconstitutional, and that they interlocked so completely that by striking down even one of them, the entire Act would have to fall.
As a political staffer friend, who is a trained lawyer (though not currently practicing), tells me: “The problem with results-oriented jurisprudence is it makes hypocrisy easy to spot.”
The full paragraph in that original dissent is as follows:
In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. […] That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.
By: Eric Kleefeld, The National Memo, June 25, 2015
“Conservatives Lost Outright”: John Roberts, Liberal Hero; How The Chief Justice Destroyed The Conservative Case Against ObamaCare
Since ObamaCare passed in 2010, Republicans have been searching desperately for a way to destroy the law through legal trickery (or as they call it, “judicial activism”), since they don’t have the means to kill it through legislation. In 2012, with the Supreme Court decision NFIB v. Sebelius, they got a partial victory, with the court badly wounding the law’s Medicaid expansion but leaving the rest unharmed.
In the case decided on Thursday, King v. Burwell, conservatives sought to cripple the insurance markets in states that had not set up their own health care exchanges. They did this by advancing a spurious reading of the Affordable Care Act (ACA) that would forbid insurance subsidies from flowing through the federal exchange website, thus devastating the private insurance markets in those states.
This time, conservatives lost outright. Chief Justice John Roberts, joined by Justice Anthony Kennedy and the four liberals on the bench, wrote the opinion — and it delivers a stark rebuke to the conservatives who have been fumbling around for an alternative to ObamaCare since 2010. “Repeal and replace” has been their mantra, but they never even got close to uniting around an actual replacement policy. Today, Roberts shows us why: It’s impossible.
King focused on a single phrase in the ACA, “established by the State,” which, taken out of all legal and policy context, could be construed to restrict subsidies to the state exchanges only. Because the Chevron doctrine requires that, in case of ambiguous wording, the implementing agencies get to decide how to interpret a law (in this case the IRS), it was necessary to construct an alternate history of the ACA. In this version, Congress meant to restrict subsidies to the state exchanges, to coerce states into creating one.
Liberals carefully explained that no, that was a completely insane version of ObamaCare’s history. Health care policy reporters, the staffers who drafted the law, and members of Congress who voted for it all swore up and down that this had never even been seriously discussed, let alone that it was their intention. State-level politicians, who are responsible for deciding whether to create their own exchanges, reported they had never heard of such a threat. Why would Congress create a mechanism to force states to do something, and then never mention it?
Roberts’ opinion delivers total victory to the liberal case. First, he examines the statute and finds that, in fact, it is not ambiguous — the government’s interpretation is correct. He writes that, considered in context, the plaintiff’s reading of “established by the State” would make great swathes of the rest of the law totally nonsensical. The ACA clearly states that all exchanges are to provide qualified plans to qualified people, which would be impossible for the federal exchange without subsidies. Moreover, why would the law provide for a creation of a federal exchange at all, if nobody can actually use it?
Second, and more fundamentally, Roberts finds that the plaintiff’s reading of ACA is poles apart from the obvious policy intention of the law. He accurately describes ObamaCare’s three-pronged approach: guaranteed issue and community rating, requiring insurance companies to offer policies to everyone at a reasonable price; an individual mandate, so that healthy people will participate in the risk pool; and subsidies for people who can’t afford the insurance.
All three are necessary for ObamaCare to work, but the plaintiffs’ reading would eliminate two of the three prongs in states without their own exchange. Subsidies would go, and so would the individual mandate, because it doesn’t apply if people are spending more than 8 percent of their income on a policy. Roberts notes that this would likely cause an insurance death spiral in those states, as healthier people flee an increasingly expensive market, turning the ACA into a health insurance doomsday device. Indeed, just such a death spiral happened in several states before ObamaCare passed — which is partly why it included all three prongs. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he concludes.
That brings me to the “replacement” rhetoric. Roberts’ clear account of ObamaCare’s policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years — in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster.
It’s an implicit concession that ObamaCare is the most conservative possible policy that could get even close to universal coverage — if five years of Republican policy failure weren’t enough evidence.
By: Ryan Cooper, The Week, June 25, 2015
“GOP Failure Theater”: How Conservatives Convinced Themselves That Another ObamaCare Loss Is Just Prelude To Greater Victory
There’s a ritual carried out by losing candidates on election night, in which they come before their supporters gathered in a hotel ballroom, look out at all the long faces and tired eyes, and say, “This has been a noble crusade. And though we may have lost today, the battle for the things we believe in goes on. I’ll be there fighting for that vision, and I hope you’ll be there with me.” Everyone applauds, and then they all go home.
Now that the Supreme Court has ruled against what was simultaneously the most absurd and the most threatening challenge to the Affordable Care Act, conservatives are enacting something similar to that election night ritual. In private, many are expressing relief, since there was widespread worry that if the King v. Burwell lawsuit had succeeded, they would have been responsible for at least six million Americans losing insurance subsidies, and quite appropriately gotten the blame for it. But what are they saying publicly?
The politicians are finding virtue in consistency; their line is that this changes nothing.
“Today’s ruling won’t change ObamaCare’s multitude of broken promises,” said Mitch McConnell.
“ObamaCare is fundamentally broken,” said John Boehner. “Today’s ruling doesn’t change that fact.”
“Today’s ruling makes it clear that if we want to fix our broken healthcare system, then we will need to elect a Republican president,” said RNC chair Reince Priebus, who also made the fascinating observation that a Hillary Clinton presidency would be terrible for America.
Naturally, conservatives are disgusted with Chief Justice Roberts, whom they regard as an unreliable ally, unlike Justices Scalia, Thomas, and Alito. Quin Hillyer of the National Review summed up their feelings: “He is a disgrace. That is all.” But as far as conservative commentators are concerned, the perfidy extends beyond the Supreme Court to the cowards and quislings in Congress. And so, in a particularly optimistic strain of thought, they’re arguing that the decision is really an excellent outcome.
That’s because it has saved the right from another round of what blogger Allahpundit calls “GOP failure theater,” in which Republicans in Congress “make a pretense of putting up a fight in hopes that conservative voters will be impressed and to obtain some sort of mostly meaningless concession to wave at them when the inevitable, and predestined, cave finally happens.”
Similarly, Ben Domenech argues that the decision is a good thing for conservatives, because now Republican candidates will have to come up with really good health care plans to enact when they take back the White House: “Thus, I think the ruling today probably increases the likelihood of repealing ObamaCare in 2017 by a not insignificant margin.” On a similar note, Bill Kristol tweeted, “Repeal of ObamaCare and replacement with limited-government alternative in 2017 will be one of modern conservatism’s finest hours.”
That presumes that the Republican nominee will win, of course. But it also presumes that he would have the ability and willingness to repeal the ACA upon taking office.
There’s no question that the Republican presidential candidates will continue to express their eagerness to do so, at least until we get to the general election. Though none of them has anything resembling a fully-formed plan for the “replace” part of “repeal and replace” that Republicans have been advocating for years, they still have to pay lip service to the idea that the consensus conservative health care plan is coming any day now. When you’ve spent the last five years arguing that this law is a poison-tipped dagger plunging into liberty’s heart, you can’t just say, “Eh, looks like we’ll live with it,” no matter what the practical reality might be.
The practical reality is that whatever public opinion may be about this large abstraction called “ObamaCare,” the law is delivering particular benefits of which Americans are quite fond and that they don’t want to lose. Taking away those subsidies through a lawsuit would have been a political disaster for Republicans, and that would have affected only a portion of the public. What if Republicans were to take away subsidies from people in all 50 states, and toss millions more off Medicaid, and make it so that now insurance companies can deny you coverage because of a pre-existing condition again? That’s what repealing the ACA would mean. Republicans may not be able to admit it, as they promise that their phantom alternative plan would take care of all that, but they know that just undoing the ACA would be a disaster.
They can’t acknowledge that fact, because they have a constituency that has been fed heaping plates of apocalyptic rhetoric on this issue ever since the ACA became law. Those Republican base voters need to be told that, though they’ve suffered a loss, the fight is not over. As Ted Kennedy said 35 years ago in what may be the prototypical example of that losing candidate’s speech to his dismayed supporters, “the work goes on, the cause endures, the hope still lives, and the dream shall never die.”
By: Paul Waldman, Senior Writer, The American Prospect; Contributing Writer, The Week, June 25, 2015
“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
“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
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