I believe it was Buzz Lightyear who once said, “you’re a sad, strange little man, and you have my pity.” He said those words to Woody, who was, curiously, taller and almost constantly smiling, but the power of the jab resonates today. Because another sad, strange little man deserves our pity today as Justice Antonin Scalia raged against Obamacare and rudimentary principles of statutory interpretation.
Hours ago, Chief Justice Roberts delivered a 6-3 opinion affirming the Fourth Circuit and recognizing that federal tax subsidies are available even in states where the local government refused to set up a health insurance exchange, triggering a requirement that the federal government build an exchange for them, in a shameless act of opportunistic political freeriding — the citizens of the state enjoy the benefits of affordable health care, while the state government can reap the political rewards of complaining about it. It’s as brilliant as it is a depressing commentary on America.
At issue was 26 U.S.C. §36B(a), which offered tax subsidies to “an Exchange established by the State under [42 U. S. C. §18031].” If tax subsidies were withheld from states with federally-run exchanges the whole system would collapse, so this was kind of a big deal. If it seems non-sensical that Congress would pass and the President would sign a massive piece of legislation with one clause of one section capable of tearing the whole enterprise asunder, well… you have 6 justices on the Supreme Court who agree with you.
The good people over at Lawyers, Guns & Money referred to this as the “card says Moops” case, an apt reference to the classic episode of Seinfeld where George nearly murders the “Bubble Boy” over a typo on a Trivial Pursuit card. It may say “Moops” but that doesn’t change the fact that the “Moors” invaded Spain.
Like that episode, the conservative challenge ran afoul of the reality of the law, with the Court stating, basically: this law is 900 pages long and this phrase — if read the way we’re asked to read it — makes 899 of those pages make no sense. It’s not only common sense, it’s pretty fundamental statutory interpretation.
As the Chief Justice explains, “when deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.'” In this case, that context included a provision that “the Secretary of Health and Human Services ‘shall . . . establish and operate such Exchange within the State.'” and that “[b]y using the phrase ‘such Exchange,’ Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031.”
It’s hard to argue with reasoning that straightforward, but that brings us to our sad, strange little man. Justice Scalia not only dissented from the opinion, he offered a rant unmoored from any legal principle other than his political opposition to the law. For a guy who rails against legislating from the bench, he sure wants to relegislate a lot.
Like an elderly uncle in the throes of decline, Justice Scalia hones in on “the card says Moops” and never lets go, excoriating his colleagues — not so much the quality of their reasoning, but for spurious jabs at the straw people zombies closing in on his worldview — but for deigning to consider anything but the most totemistic reliance on simplest Webster’s definition of the word “State,” even in a law that contextually defines the word “State” to justify the precise language of the majority.
Indeed, he breathlessly cited seven instances of the phrase “established by the State” in the law as proof that the Supreme Court wantonly rewrote the law by suggesting that definition included state exchanges operated by the federal government. For example:
The Act directs States to operate Web sites that allow anyone “who is eligible to receive [tax credits] under section 36B” to compare insurance plans offered through “an Exchange established by the State.” §1396w–3(b)(4).
….
It is bad enough for a court to cross out “by the State” once. But seven times?
Except… how is this contradictory with the majority’s reading? There must be a website for the federal exchanges operating in the states. If anything this is superfluous with federal regulations, not proof that the exchanges — no matter who administers them — must meet these requirements.
Or his comical citation to Michigan v. Bay Mills, “this Court ‘does not revise legislation . . . just because the text as written creates an apparent anomaly.'” Fun fact. But perhaps “anomaly” is different from “rendering the entire law an exercise in legislative masturbation.” There’s simply nothing compelling here, just a patchwork of out of context citations pulled from the ether of Westlaw-based keyboard mashing.
If there’s any redeeming passage in Scalia’s dissent it’s his naive statement that if tax credits really were necessary for the bill, then the states would set up their own exchanges. As though the political points a Greg Abbott scores by having all the advantage of a working health care system with none of the political blowback from the ill-informed voters he cultivates as a political base simply didn’t exist. Maybe politicians always make the right choice for their people and not just themselves. It’s nice to believe in fairy tales, and maybe we should smile that Justice Scalia still lives in one.
But most damning for Justice Scalia is his reliance — by necessity — on the fundamental premise that his linguistic games reveal what Congress must have intended. When boiled down to its essence his claim is “Congress said there were two different kinds of exchanges in one sentence… so it must have intended to render the bill unworkable with one poison pill clause here!” Of course it makes sense Justice Scalia… now take your meds and rest.
For those interested in reading tea leaves, check out this passage:
To see the error in this reasoning, one need only consider a parallel provision from our Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Art. I, §4, cl. 1 (emphasis added). Just as the Affordable Care Act directs States to establish Exchanges while allowing the Secre- tary to establish “such Exchange” as a fallback, the Elec- tions Clause directs state legislatures to prescribe election regulations while allowing Congress to make “such Regu- lations” as a fallback. Would anybody refer to an election regulation made by Congress as a “regulation prescribed by the state legislature”? Would anybody say that a fed- eral election law and a state election law are in all re- spects equivalent? Of course not.
With the interpretation of the Elections clause still pending in Arizona Legislature, is Justice Scalia signaling something? Perhaps that independent commissions are doomed on the very textual reading of “such” that the Court does not apply here? UPDATE 6/29 10:37 a.m.: No. As it turns out the correct reading was “Justice Scalia using another dissent to snidely complain that he’s losing in another case too.” Which is such a classic Scalia move, it should have been my first guess.
Because, you know, words can never have different meanings in different contexts.
It’s classic Justice Scalia: witty, filled with words you figured were made up (“jiggery-pokery”), and a heaping dose of bile. But in the end, while entertaining, bluster is rarely a match for careful analysis.