Thursday, June 25, 2015

Supreme Court saves Obamacare again - Scalia pulls a punch

Fan(s)™ of my Platinum Coin series surely knew where I stood on the latest challenge to Obamacare, King v. Burwell, which challenged whether federal subsidies were available in states that refused to set up their own health-insurances exchanges. In short: the plaintiffs advanced a rather hyper-textualist reading of the law, and hyper-textualist arguments almost never win if there is any decent pragmatic argument to the contrary.

And that's the best reading, in my view, of Chief Justice Roberts's opinion for the Court today. Deep down he and Kennedy sensed it would be unjust to be hyper-technical in this case, and they were able to find enough rhetorical cover to justify a departure from the "plain meaning" of the statutory text. So they did.

Justice Scalia's dissent, however, is fairly powerful on its own terms—even if it is characteristically overcooked. He has a compelling response to each of Roberts's dodges. Based on the text of the statute alone, even when viewed in context, and even taking some account for the apparent "purpose" of the legislation, the argument for the plaintiffs in King is compelling on purely interpretive grounds.

But what struck me as I read his dissent was its complete lack of pragmatism. This is no accident: Scalia is not a pragmatist -- that's Justice Breyer's gig, and it is anathema to Scalia. But ultimately Scalia's defense of his interpretive method relies on a core principle of judicial restraint: that it is Congress's job to legislate, and the judicial power does not include the power to save badly drafted legislation. That's all well and good, but when the practical effect of such restraint would be to more or less undo landmark legislation, it makes the principle itself seem suspect, even monstrous. It's strange that judicial restraint would be the principle that undermines what many consider Congress's most momentous achievement of this century.

In any event, one thing to get off my chest: the usual suspects (whom I will not name) pegged this challenge as frivolous or cynical. This grates me to no end. I urge you to forever ignore any person who advanced that argument, as they are hacks and shills. As one example, many commentators advanced the argument that this challenge was frivolous because at the very least the statute had enough ambiguity to invoke Chevron deference, which is the doctrine that courts should defer to expert agency interpretations of ambiguous statutes.

Not a single justice bought that argument. Both the Roberts opinion and the Scalia dissent rejected it without reservation. No one concurred to say, "Hey, Chevron!" So this argument that commentators said rendered the King challenge frivolous lost nine to zip at the Supreme Court.

And finally, Justice Scalia ends his dissent with a pretty great little joke:
Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. 
I absolutely guarantee that at some point in the drafting process the punchline of this joke was ROBERTScare.

1 comment:

  1. Excellent post, Mr. Torvik. But does this count as part of the Platinum Coin series? Some of us eagerly await the next installment.


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