The Supreme Court’s opinion in King v. Burwell was released on Thursday with a 6-3 vote ruling in favor of the Affordable Care Act. Asked to decipher the meaning of “an exchange established by the State,” the fairly decisive ruling indicates that the “State” includes not only the states–as one would assume–but expands to include the federal government as well. Justice Antonin Scalia wrote a scathing dissent that not only displayed his blatant disgust for the attitude of the present Court toward ObamaCare, but also revealed a bit of his lighter and sarcastic side.
Joined by Justices Clarence Thomas and Samuel Alito, Scalia’s response was so brilliantly written and contained such sound logic (a novel concept in today’s world) that it deserves an entire article just to highlight his scintillating arguments.
Early on in his dissent, Scalia discusses the facts of the case and why the Court was asked to review it. His incredulity at the entire situation is clear, and common sense forces one to agree with Scalia’s reasoning:
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. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.
He goes on to explain the dangers of relative interpretation–or, as he called it, “interpretive jiggery-pokery.” He highlights the clear language used to decisively create subsidies only for exchanges created by the States; since the HHS Secretary is not a State, he assumes that an exchange established by that Secretary would not qualify for subsidies. (The nerve of him, using sound logic!) However, it seems even he was aware of this irony while writing his dissent, and recognized the underlying theme that prevents all from following the same logic:
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
Scalia concedes that in certain cases, the ordinary use of language may not carry the intent of the authors, and grants that interpretation certainly plays a role. This decision, however, “is not merely unnatural; it is unheard of.”
Why Words–and Their Structures–Matter
Scalia’s next goal is to explain why the Court’s ruling was so unprecedented. He does this by detailing the intricacies of the Affordable Care Act that lay out the specific roles of both the states and the Secretary of Health & Human Services, the state and federal exchanges, and the nature of each one’s funding. Since they come from totally separate provisions of the law, Scalia logically assumes that exchanges set up by states and those set up by the federal government are totally separate and thus not eligible for the same types of funding. This, he argues, is an obvious disregard for the “elementary” principle that requires giving “effect, if possible, to every clause and word of a statute.”
The Court’s reading does not merely give “by the State” a duplicative effect; it causes the phrase to have no effect whatever.
This is the underlying theme of Scalia’s entire dissent. The very real possibility of ruling words out of meaning is of concern for Scalia, and should certainly be of concern to everyone affected by this case (which is, in case you hadn’t heard, everyone). As he rightly presumes, nullifying the phrase “by the State” in this one provision of the law opens the door to nullifying its use in every provision of the Affordable Care Act; by doing so, one could altogether remove every role the states have in Obamacare’s implementation until this truly is just an overlord-type federal program.
In what is perhaps the most pointed blow to the government’s case, Scalia notes the following:
The Act includes a clause providing that “[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State” for certain purposes. Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange.
The law provides examples of entities that are not traditional “States” being included in the definition for certain purposes, but nowhere is the HHS Secretary deemed one of those entities. One could assume that such a lack in mention would garner the federal government a lack of “Statehood”–but clearly, the Supreme Court does not come to this conclusion.
Why the Government’s Argument was “Pure Applesauce”
The final nail in Scalia’s dissenting coffin is his comparison of the word “such” in the current case and the word’s use in the Elections Clause of the Constitution. The latter allows Congress to alter “such regulations” regarding elections that states have established. Declaring federal and state exchanges to be equal in the eyes of the law is essentially the same, Scalia argues, as equating election laws created by Congress and those created by state legislatures. No clear-minded soul would do such a thing, and Scalia views it as a blatant misuse of power for the Court to do so.
ObamaCare, Scalia notes, is interpreted to have attempted three major changes to our healthcare system: the inability of insurance companies to consider preexisting conditions when choosing which individuals to insure, the infamous individual mandate, and tax credits to make insurance more affordable to those in need. But as Scalia goes on to highlight:
Like it or not, the express terms of the Affordable Care Act make only two of the three reforms mentioned by the Court applicable in States that do not establish Exchanges. It is perfectly possible for them to operate independently of tax credits. The guaranteed-issue and community-rating requirements continue to ensure that insurance companies treat all customers the same no matter their health, and the individual mandate continues to encourage people to maintain coverage, lest they be “taxed.”
According to this line of thought, the federal government is afraid that states may be able to operate without federal assistance, and is therefore making drastic efforts to insert itself into those states that deny their assistance. You can almost hear Scalia’s frustration:
So even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act. This is what justifies going out of our way to read “established by the State” to mean “established by the State or not established by the State”?
The Affordable Care Act was written in a way that would encourage state participation in the process by giving them the first opportunity to create exchanges before the federal government inserted itself. Scalia interprets this entire case as an attempt by the federal government to scramble over an apparent “misprint” on their part that allows states way too much relative freedom in determining how operations in their respective states will occur. In the esteemed Justice’s words, their efforts are “pure applesauce.”
I think Justice Scalia’s closing paragraph speaks well for itself. Overall, the Justice’s voice is one of reason that is refreshing in regarding a case that has been surrounded by so much swirling inaccuracy and should be treated as a logical response to anyone who attempts to change a word’s meaning to fit their own agenda.
The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.