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Scalia's Obamacare Argument Is Stronger than Roberts'

June 26, 2015 in Economics

By Ilya Shapiro

Ilya Shapiro

This Obamacare case was supposed to be different. King v. Burwell was not a constitutional challenge that threatened or promised to roll back federal power. It merely asked the U.S. Supreme Court to interpret four simple words, “established by the state,” that recur multiple times in myriad variations to distinguish among the different kinds of exchanges through which people can buy insurance under the Affordable Care Act: state, federal, territorial, private, other.

Pretty esoteric and sui generis — as many exercises in interpreting complex statutes are — although at stake were subsidies flowing to millions of people and mandates/penalties constricting millions of others.

And yet the result was the same: Chief Justice John Roberts, who had been the apple of George W. Bush’s eye, twisted key words away to vindicate the administration of Barack Obama.

Scalia renamed the law at issue “SCOTUScare,” but really it deserves the moniker RobertsCare.”

Take this sentence from one of the opinions: “If we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” You’d think that I pulled that line from Justice Antonin Scalia’s dissenting opinion. After all, it takes the statutory text on its face, with the interpreted result that Congress gave states the incentive to create exchanges by making their citizens eligible for tax credits if they do.

But you’d be wrong. It comes from the majority opinion, in which the chief justice admits, as he did three years ago in the individual mandate case of the National Federation of Independent Business v. Sebelius, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorted himself to ignore that “natural meaning” and rewrite Congress’s “inartful” scheme, this time such that “exchange established by the state” means exchange established by anyone. Scalia rightly called this novel interpretation “absurd.”

Of course, Roberts explained his twistification by finding it “implausible that Congress meant the Act to operate in this manner,” to deny tax credits for health insurance as part of legislation intended to expanded coverage. Yet it’s hardly implausible to think that a statute that still says that states “shall” set up exchanges — the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to enforce federal law — would effectively give states an offer nobody thought they’d refuse.

It was supposed to be a …read more

Source: OP-EDS

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