Scalia on Obamacare: ‘We Should Start Calling This Law SCOTUScare’

The justice wrote in his dissenting opinion Thursday that the Supreme Court had made a “defense of the indefensible.”

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC.
National Journal
Brian Resnick and Marina Koren
Add to Briefcase
Brian Resnick and Marina Koren
June 25, 2015, 6:27 a.m.

In a land­mark 6-3 rul­ing, the Su­preme Court on Thursday up­held the Af­ford­able Care Act’s in­sur­ance sub­sidies in every state.

The de­cision in the King v. Bur­well case is a win for the White House. For Justice Ant­on­in Scalia, who wrote the dis­sent­ing opin­ion, the ma­jor­ity opin­ion, which was au­thored by Chief Justice John Roberts, is a “de­fense of the in­defens­ible.”

The de­cision, Scalia wrote, “re­writes the law.”

“We should start call­ing this law SCOTUS­care,” he wrote.

He con­tin­ued: “Rather than re­writ­ing the law un­der the pre­tense of in­ter­pret­ing it, the Court should have left it to Con­gress to de­cide what to do about the Act’s lim­it­a­tion of tax cred­its to state ex­changes,” Scalia wrote.

(RE­LATED: John Roberts Saves Obama­care, Again)

The rul­ing re­jects a law­suit that aimed to gut fed­er­al health care sub­sidies for people in 34 states. If the Court had ruled the oth­er way, more than 6 mil­lion people would have been at risk of los­ing their cov­er­age.

Scalia, who read his dis­sent from the bench, was joined by Justices Clar­ence Thomas and Samuel Alito in his dis­sent. Scalia took is­sue with the ma­jor­ity’s in­ter­pret­a­tion of the lan­guage with­in the Af­ford­able Care Act. The law states that in or­der for people to qual­i­fy for health care sub­sidies, they need to be “en­rolled in through an ex­change es­tab­lished by the state.” The ma­jor­ity up­held that by “state,” the law re­ferred to in­di­vidu­al state ex­changes or ex­changes set up by the fed­er­al gov­ern­ment. Oth­er­wise, the ma­jor­ity opin­ion stated, state ex­changes would drown in a “death spir­al.”

Roberts wrote that it is im­plaus­ible that Con­gress meant the Act to op­er­ate in this man­ner.”

(RE­LATED: The Truth About Obama­care’s “Double-Di­git” Premi­um In­creases)

Scalia heav­ily cri­ti­cized this read­ing, say­ing that the ma­jor­ity has er­ro­neously in­ter­preted the word “state” to also mean “fed­er­al gov­ern­ment.” He called parts of the ma­jor­ity opin­ion “in­ter­pret­ive jig­gery-pokery.”

“The Sec­ret­ary of Health and Hu­man Ser­vices is not a state,” he wrote. “Words no longer have mean­ing if an ex­change that is not es­tab­lished by a state is ‘es­tab­lished by the state.’”

Scalia wrote that the justices who au­thored the ma­jor­ity dis­played “no semb­lance of shame” in their opin­ion. His dis­sent is littered with jabs at his fel­low justices. “Today’s in­ter­pret­a­tion is not merely un­nat­ur­al; it is un­heard of,” Scalia writes. He de­scribes an­oth­er as­pect of the ma­jor­ity’s ana­lys­is to be “pure apple­sauce.”

King v. Bur­well was one of the biggest leg­al chal­lenges to Obama­care since 2012, when the Court up­held Obama­care’s in­di­vidu­al man­date. In the con­clu­sion of his dis­sent, Scalia said the Court got it wrong both times—and that it has shown bi­as to­ward the Obama ad­min­is­tra­tion’s policies.

(RE­LATED: CBO: Re­peal­ing Obama­care Would Leave 19 Mil­lion Un­in­sured; Raise Fed­er­al De­fi­cit)

“[T]he 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,” Scalia wrote. “I dis­sent.”

This story is break­ing and will be up­dated.

What We're Following See More »
STAFF IS PUSHING BACK
Trump Wants Scaramucci to Helm WH Communications
16 minutes ago
THE LATEST

"President Trump is expected to announce that Wall Street financier Anthony Scaramucci will be White House communications director, according to two sources familiar with the planning. Trump has left the role open since Mike Dubke resigned in May, and the President has vented frequently to his friends about the performance of his press operation." According to NBC News, Steve Bannon and Reince Priebus are resisting the move.

Source:
NEW GALLUP POLL
Trump’s Approval Rating a Record Low at 6-Month Point
35 minutes ago
THE DETAILS

"President Donald Trump's second-quarter job approval rating has fallen below what any other past president has gotten during the same time frame. A new Gallup poll found that Trump averaged a 38.8% rating between April 20 and July 19. The average approval rating for that time is 62%. President Obama was at the average during this time period, as was President Nixon. President Clinton is the only president who was below 50% by the second quarter, coming in with a 44% approval rating." There is also a large partisan gap. "Just 8% of Democrats approved of Trump's job performance during the second quarter, but 85% of Republicans did. Approval ratings have become increasingly polarized in recent administrations, but the 77-point gap for Trump is a new record."

Source:
ANNOUNCEMENT IMMINENT
Government to Bar Americans from Visiting N. Korea
36 minutes ago
THE DETAILS

"The US government will soon prohibit American citizens from traveling to North Korea, according to two tour groups that cater to Western tourists who want to visit the secretive country. The US will announce the ban within a couple of days, said Simon Cockerell, general manager of Beijing-based Koryo Tours. The agency was informed of the development by officials of the Swedish government, which represents America's interests in North Korea, he told CNN."

Source:
NEA AND NEH GET $145 MIL EACH
House Appropriations Ignore Trump’s Proposed Arts Cuts
1 hours ago
THE DETAILS

"Federal arts and humanities programs targeted for elimination by the Trump administration would get a lifeline from House appropriators willing to ignore the president’s proposal and keep them running. The $31.5 billion fiscal 2018 Interior-Environment spending bill approved by the House Appropriations Committee on Tuesday includes $145 million for the National Endowment for the Arts. While that’s still a 3.2 percent cut from the fiscal year 2017 enacted level, it is more than $116 million above Trump’s budget request. The National Endowment for the Humanities would receive $145 million in fiscal 2018, which is $103.7 million above the White House budget request."

Source:
469 WITHDRAWN, 391 BEING REEVALUATED
Trump Nixes Hundreds of Obama Regs
2 hours ago
THE DETAILS

"The White House’s Office of Management and Budget detailed Thursday how it would jettison hundreds of existing or planned regulations as part of its larger push to ease federal restrictions on the private sector, upending federal policies on labor, the environment and public health. ... The Trump administration said it was pulling or suspending 860 pending regulations."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login