Thursday, June 25, 2015


The Supreme Court of the United States has once again saved Obamacare, this time on the validity of giving Obamacare tax subsidies to people who live in states that have not established the insurance exchanges; the law requires a state established exchange as a prerequisite to getting the tax subsidy.

No matter, according to the majority.  A state is not really a state or something. The words don't matter. Why look at the actual language of the statute when we can look to policy goals and context? Up is down and down is up: the majority found Congress' statutory language ambiguous and yet divined Congressional intent as clear. Logically, the Court cannot have it both ways.

Chief Justice Roberts once again joined the left, this time accompanied by Justice Anthony Kennedy, to uphold the vote 6-3.

This is a shameful moment in the history of the Court. This is a true erosion in the rule of law in this country, The Court disregarded clear language.  "Established by a state" is not an obscure term of art. that requires nuanced legal reasoning. Any fifth grader could read the phrase and understand that the federal government is not a "state."

A few choice morsels from Justice Scalia's dissent:

  • “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd.
  • “You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. . . . Words no longer have meaning if an Exchange that is not established by a State is “established by the State
  • .”It is not our place to judge the quality of the care and deliberation that went into this or any other law. . . . 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

Justice Scalia is right in dissent. Having now rewritten the statute to save it -- twice -- the name should be changed from Obamacare to SCOTUScare.  

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