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
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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.

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