Scalia’s Craven Self-Contradiction and Pettifogging Pedantry
In his dissent to Edwards v. Aguillard, Supreme Court justice Antonin Scalia made a neat distinction, sidestepping the issue of “legislative intent” that he finds so troubling:
it is possible to discern the objective “purpose” of a statute (i. e., the public good at which its provisions appear to be directed),
(The dissent is obsessed with “purpose”; the word appears 76 times therein.)
But in his dissent on yesterday’s King v. Burwell (Obamacare) decision, he chooses to ignore that statute’s obvious, objective purpose: to provide subsidies for buyers of exchange plans.
Rather than doing as he proposes, trying to “discern the objective ‘purpose’ of a statute'”, he seeks to deny the statute’s obvious purpose by determining the “purpose” of a few words therein — with a statement that can only be perceived as intentionally obtuse:
it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges
This very smart man could easily “come up with a reason.” Since those words contradict the obvious, objective purpose displayed by everything else in the statute, the words were accidentally misphrased. You might even go so far as to say that this is the obvious, “objective” conclusion.
Scalia would agree. In his dissent on the previous Obamacare challenge, he says:
“Without the federal subsidies . . . the exchanges would not operate as Congress intended.”
You may feel free to quibble over “purpose” versus “intention,” but the obvious, objective, intentional purpose of the statue was to give subsidies to purchasers of exchange plans.
Any attempt to deny or obscure that reality is pettifogging pedantry. Nothing more.
Update: Bruce Webb in comments shows just how objectively obvious the “purpose” is. The title of the statute’s opening section (emphasis mine):
Title I. Quality, Affordable Health Care for All Americans
Cross-posted at Asymptosis.
TITLE I—QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS
Subtitle A—Immediate Improvements in Health Care Coverage for All Americans
You don’t have to delve too deep in PPACA to figure out its purpose: “Health Care Coverage” “All Americans”. It wasn’t some weird attempt to see if we could leverage States into some federalist solution, it instead had the purpose of, duh, providing affordable health care for all Americans.
This being so, and given that the Act was passed over the near unanimous objection of all Republicans the notion that the sponsors willingly and with full intent aforethought gave effective veto power to any State legislature that decided not to play ball is ludicrous. This wasn’t some weird game being played, it was a long fought out attempt to find some path to “Affordable Health Care for All Americans” that could make it through a Senate with only 59 Democratic members. And it got a little messy along the way, something AB readers who were around at the time know well because the process was thoroughly covered in a whole series of posts, many of them by me.
If we had to fisk the ‘purpose’ argument we could go right to the section that established State Exchanges, which had the following title:
Subtitle D—Available Coverage Choices for All Americans
Once again “All Americans”
Implementing Subtitle D
PART 1—ESTABLISHMENT OF QUALIFIED HEALTH PLAN
to be available for all Americans. Via:
PART 2—CONSUMER CHOICES AND INSURANCE COMPETITION THROUGH HEALTH BENEFIT EXCHANGES
with no hint that these would not be available to “all Americans”.
Now there was some uproar about ‘one size does not fit all’ and so the law goes on to:
PART 3—STATE FLEXIBILITY RELATING TO EXCHANGES
but this flexibility is clearly textually and logically subordinate to the PURPOSE laid out in Title 1 and its Parts 2 and 3 with their emphasis over and over on “All Americans”. The notion that the whole intent was to establish a system to serve all Americans except those the various States might decide to screw over is patently ridiculous.
Scalia is being simply dishonest here.
Yeah: “All Americans” is pretty much the clincher here, huh?
As I noted the other day Scalia says, “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.”
He knew that the purpose of the Act would be destroyed if the government lost. A judge should be able to put himself in someone else’s shoes enough to see that we think it was his overriding principle that the ACA should be unsavable.
well, i am no master of, or believer in, either the “purpose of the law” or “congressional intent” or Supreme Court logic
but I like the interpretation above that the “state exchanes” clause was simply careless drafting.
unless it was a poison pill inserted in the dark of night by the bill’s enemies.
meanwhile, it seems to me that the Court has to be careful: it wants to keep the ACA because the insurance industry wants it, and it has to preserve the Republican continued ability to demagogue it.
As I think Bruce points out, of course the R’s didn’t want to “win” Burwell.
and I don’t really mind all the heavy breathing about Scalia’s craven self contradiction. after all, isn’t that what theater is for?
As I think Coberly points out “It’s all over when the fat man sings”.
I don’t know about theatre, I think Fat Tony is more an opera guy. Scalia at the Scala singing O Sole Mio?
(Pavarotti doing his best Scalia: https://www.youtube.com/watch?v=d_mLFHLSULw)