Scalia Dismantles the ‘Interpretive Jiggery-Pokery’ of King v. Burwell

AP Photo/Matt Rourke
AP Photo/Matt Rourke

I certainly hope every Republican presidential and congressional candidate is reading Justice Scalia’s dissenting opinion in King v. Burwell carefully. It’s a masterful argument for the rule of law, an absolute shredding of the ridiculous majority opinion. Scalia is always a fascinating read, especially in dissent, but this might be his masterwork.

“Great, but what difference does it make?” you might ask, quoting a certain politician’s callous dismissal of the notion that she should be held responsible for deadly incompetence and dishonesty. “Scalia’s in a three-judge minority. This goose is cooked!”

That’s the thing about liberty that really drives totalitarians crazy: nothing is ever over. Freedom means the ability to change course, correct mistakes, withdraw consent, repeal laws, and build arguments. The Left wants you to think nothing is over until they win, at which point it’s over forever, and it should probably be a crime to even suggest otherwise. Do not listen to them. Look at a decision like King v. Burwell the way they would: as the beginning of a fight, not the end.

With that in mind, Justice Scalia places some powerful intellectual weapons in the hands of those who would repeal ObamaCare and restore the rule of law.

One of the most important passages of his dissent comes when he tackles the central contention of the majority head-on. Roberts and the concurring justices argue the words “established by the State” are utterly meaningless in the portion of the Affordable Care Act that deals with subsidies. They’re not even a redundant rhetorical flourish, like saying “cease and desist,” because ceasing involves a good deal of desisting. The majority says those words in the ACA simply do not exist, even though they’re right there on the paper.

“Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government?'” Scalia asks. “Little short of an express statutory definition could justify adopting this singular reading.”

This raises the question of whether King v. Burwell can now be cited as precedent for effectively nationalizing any state resource the federal government covets. Try running through any major piece of state legislation and ask yourself how much sense it makes if “established by the State” now means “established by the State or Federal Government,” or how much chaos we’re in for if Chief Justice Roberts’ highly subjective, political “context” flapdoodle determines what such phrases mean on a case-by-case basis.

That’s what Scalia is driving at when he talks about how law cannot survive if the very meaning of language is completely fluid. It’s not a new problem – look how much fun we’ve had for decades trying to redefine practically every word of the Second Amendment! – but King v. Burwell makes it worse.

Furthermore, Scalia notes that it’s logically impossible to square the Roberts decision with the rest of the Affordable Care Act, never mind other laws that talk about “States” establishing things.

Far from offering the overwhelming evidence of meaning needed to justify the Court’s interpretation, other contextual clues undermine it at every turn. To begin with, other parts of the Act sharply distinguish between the establishment of an Exchange by a State and the establishment of an Exchange by the Federal Government. The States’ authority to set up Exchanges comes from one provision, §18031(b); the Secretary’s authority comes from an entirely different provision, §18041(c). Funding for States to establish Exchanges comes from one part of the law, §18031(a); funding for the Secretary to establish Exchanges comes from an entirely different part of the law, §18121. States generally run state-created Exchanges; the Secretary generally runs federally created Exchanges. §18041(b)–(c). And the Secretary’s authority to set up an Exchange in a State depends upon the State’s “[f]ailure to establish [an] Exchange.” §18041(c) (emphasis added). Provisions such as these destroy any pretense that a federal Exchange is in some sense also established by a State.

Reading the rest of the Act also confirms that, as relevant here, there are only two ways to set up an Exchange in a State: establishment by a State and establishment by the Secretary. §§18031(b), 18041(c). So saying that an Exchange established by the Federal Government is “established by the State” goes beyond giving words bizarre meanings; it leaves the limiting phrase “by the State” with no operative effect at all. That is a stark violation of the elementary principle that requires an interpreter “to give effect, if possible, to every clause and word of a statute.” Montclair v. Ramsdell , 107 U. S. 147, 152 (1883).

In weighing this argument, it is well to remember the difference between giving a term a meaning that duplicates another part of the law, and giving a term no meaning at all. Lawmakers sometimes repeat themselves—whether out of a desire to add emphasis, a sense of belt-and-suspenders caution, or a lawyerly penchant for doublets (aid and abet, cease and desist, null and void). Lawmakers do not, however, tend to use terms that “have no operation at all.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

So while the rule against treating a term as a redundancy is far from categorical, the rule against treating it as a nullity is as close to absolute as interpretive principles get. The Court’s reading does not merely give “by the State” a duplicative effect; it causes the phrase to have no effect whatever.

Scalia then lists seven other key instances of the phrase “exchange established by the State” that become wildly distorted, or downright haywire, if the phrase is held meaningless as the majority directs. “It is bad enough for a court to cross out ‘by the State’ once. But seven times?” he asks.

To buttress this point, Scalia notes numerous instances in the Affordable Care Act that go out of their way to make it clear they apply to all “exchanges,” whether established by states or the federal government.

He follows up with the devastating haymaker punch of noting that the Affordable Care Act threatens the Medicaid funding of states if a particular “exchange established by the State” does not use a “secure electronic interface” to establish the eligibility of applicants for certain benefits, including tax credits. There is no way to make this part of the law make sense if “exchange established by the State” doesn’t mean exactly what Roberts says it doesn’t mean; as Scalia asks, “How could a State control the type of electronic interface used by a federal Exchange?”

Another part of the ACA conditions financial assistance to states on whether they are “making progress” toward establishing an exchange. “Does a State that refuses to set up an Exchange still receive this funding, on the premise that Exchanges established by the Federal Government are really established by the States?” Scalia asks. He knows the answer, and he knows how the feckless ObamaCare-supporting majority gets there: by randomly, politically deciding that sometimes the words “exchange established by the State” have meaning, and sometimes they do not.

If not for this “interpretive jiggery-pokery,” as Scalia calls it, the Roberts decision could actually bring ObamaCare crashing down even more thoroughly than ruling the subsidies illegal would have. Among other things, there wouldn’t be any way for weak-kneed GOP leaders to apply a quick, painless-to-Democrats legislative patch to keep the S.S. ObamaCare afloat after dozens of holes were blown beneath her waterline.

Scalia also catches the majority in a rather breathtaking act of dishonesty when they pretend to be surprised and confused that the ACA would make a large number of people theoretically eligible for tax credits at first, then zero those credits out if their insurance was not purchased on an exchange “established by the State.” In fact, as Scalia notes, tax credit laws usually do work that way, for a variety of administrative reasons, including the way people often move between states in the middle of a fiscal year. I strongly suspect the majority only pretended not to be aware of what Scalia says in this passage.

There is one other part of Scalia’s dissent, a bit further along after his denunciation of interpretive jiggery-pokery, that teaches an important lesson… and conveys a vital warning.

Scalia notes one of the core arguments in the Roberts provision is that ObamaCare would collapse at a structural level if the federal exchange subsidies were wiped out:

The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements “would destabilize the individual insurance market.”

I would note this argument ignores that the authors of the ACA incorrectly believed very few states would refuse to create exchanges, and the purpose of withholding subsidies from them was to force them to abandon their resistance. In other words, Roberts is saving ObamaCare from a fatal illness its foolish creators never thought it would contract.

If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says.  Moreover, it is a flaw that appeared as well in other parts of the Act.  A different title established a long-term-care insurance program with guaranteed-issue and community-rating requirements, but without an individual mandate or subsidies.  §§8001–8002, 124 Stat. 828–847 (2010).  This program never came into effect “only because Congress, in response to actuarial analyses predicting that the [program] would be fiscally unsustainable, repealed the provision in 2013.”  Halbig, 758 F. 3d, at 410. How could the Court say that Congress would never dream of combining guaranteed-issue and community-rating requirements with a narrow individual mandate,when it combined those requirements with no individual mandate in the context of long-term-care insurance?

Scalia expands on this a bit more with further examples of how the Administration itself has interpreted parts of the ACA as causing less-devastating versions of the very same inconsistency the Court now says ObamaCare must be saved from at all costs.

The crucial point is that the Supreme Court has no business rewriting laws to keep them alive, because the original authors were idiots whose poorly-thought-out power grab proves unsustainable. The Supreme Court is not a super-legislature intended to fix problems, as Roberts has now done twice with respect to ObamaCare.

If that role has now been forever changed with the precedent of Roberts’ ObamaCare decisions, then it is time to strip Supreme Court justices of lifetime tenure and subject them to frequent elections and the possibility of recall, just like any other legislator. Otherwise, we’re going to get more of what happened in this disastrous ruling; indeed, power-hungry members of the legislature have every reason to aim high and grab as much power as they can with every law they create, secure in the knowledge that the Supreme Court super-legislature will rescue them from their arrogance and folly, at absolutely zero political cost.

Heed these words of Justice Antonin Scalia, Republicans. Memorize them. This really is the beginning of a political war, not the end… whether you feel like fighting or not.


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