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.