What happens when the Supreme Court gets it wrong? Because
that happens.
Earlier this week was the 10th anniversary of the
notorious Kelo v. City of New London decision. That was the one that defined
imminent domain requirement of “only for public use” to the endlessly broad
possible future “public benefit.” So, if a city decides it would rather get the
tax money from a mall, it could seize the property (compensating at current
market rate) and sell it to a preferred developer who might provide more tax
revenue.
All of us regular thinkers could see clearly that the
purpose of imminent domain should be something necessary, such as a road. It
should be used carefully and sparingly, not extending beyond necessity, and
always with the value of the land at its highest (if the road would make the
property more valuable, then taking it before the value is added and depriving
the owner of that increased value would be wrong).
Taking property from one owner to confer it to a preferred owner
is theft. Pure and simple. It wasn’t just misconstruing the term “public use”; it
was also a matter of disregarding all the Court’s precedent on property rights.
It so thoroughly threw out the long-held understanding of property rights, as
Sandra Day O’Connor said in her dissent, only a really “stupid staffer” could
fail to come up with some “public benefit” from any government taking. (There’s
a good review here.)
There was public outcry—across party boundaries. And some
states have amended their constitutions to address the matter, to avoid such
public seizures. But the Court has not done anything to reverse itself.
January 22 of this year was the 42nd anniversary
of Roe v. Wade, which found in the “umbras and penumbras” of the Constitution a
right to privacy that is construed to guarantee a woman a right to kill her
unborn child. It acknowledged that a state could have an interest in its
citizens, including persons-in-being, which can be at odds with the
between-the-lines right to abortion. So that led to the clarification referred
to as the undue burden rule.
Following that debate-ending SCOTUS ruling, no state has
been able to outlaw abortion. But there have been some movements toward
progress. Pro-abortionists are revealing themselves to be callous and cruel
when they oppose each and every measure. As science becomes better able to show
details of a growing fetus, laws in several states—still meeting the undue
burden requirement—have managed to curtail partial-birth abortion, and even
third-trimester abortions, or abortions after 20 weeks, the point at which pain
is proven to be felt by the unborn. Eventually this abomination will be seen
for what it is—no thanks to the Supreme Court.
Today we add to the list of SCOTUS errors. The King v.
Burwell decision came down, a 6-3 decision claiming that a state exchange is
equivalent to an exchange through the secretary of Health and Human Services.
The law doesn’t say it. The law clearly says otherwise. But Justice Roberts, in
his opinion, even though he could see that the law didn’t say what it needed to
say, wrote that we should keep the law from failing.
Here is Justice Roberts’ explanation[i]
of the situation (section C):
The Act requires the creation of an “Exchange” in each State
where people can shop for insurance, usually online. 42 U. S. C. §18031(b)(1).
An Exchange may be created in one of two ways. First, the Act provides that
“[e]ach State shall . . . establish an American Health Benefit Exchange . . .
for the State.” Ibid. Second, if a State nonetheless chooses not to establish
its own Exchange, the Act provides that the Secretary of Health and Human
Services “shall . . . establish and operate such Exchange within the State.”
§18041(c)(1).
The issue in this case is whether the Act’s tax credits are
available in States that have a Federal Exchange rather than a State Exchange.
The Act initially provides that tax credits “shall be allowed” for any
“applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount
of the tax credit depends in part on whether the taxpayer has enrolled in an
insurance plan through “an Exchange established by the State under section 1311
of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C.
§18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added).
So, there are two types of exchanges, a state exchange and
an exchange set up by the secretary of Health and Human Services. The law is
clear that those who qualify for a subsidy must fit the requirement of income
between 100-400% of poverty level and sign up through a state exchange. The law
was written that way to pressure states into setting up the exchanges. No state
exchange, no subsidy for citizens in need. It was assumed very few if any
states would refuse to set up the exchanges. But they were wrong. Many states
refused—34. In addition to those
refusing, some tried and failed. Several more are still trying but are on the
verge of total collapse. So the secretary of HHS ended up providing exchanges
for far more than expected.
And that’s why they (the IRS, directed by the
administration) decided, even though the law doesn’t provide for it, to
subsidize any low-income users of any exchange.
Roberts had a misguided purpose—again. He thinks it might
subject the Court to disrepute to throw down a law that Congress duly passed—even
though, if the Court has a purpose beyond being the final court of appeal, it’s
purpose is to throw down as unconstitutional any law Congress passed that doesn’t
meet the limited government standards clearly laid out in the Constitution. He knows
it’s bad law. He says,
The Affordable Care Act contains more than a few examples of
inartful drafting. (To cite just one, the Act creates three separate Section
1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage
contributed to that unfortunate reality. Congress wrote key parts of the Act behind
closed doors, rather than through “the traditional legislative process.”
Cannan, A Legislative History of the
Affordable Care Act: How Legislative Procedure Shapes Legislative History,
105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a
complicated budgetary procedure known as “reconciliation,” which limited
opportunities for debate and amendment, and bypassed the Senate’s normal
60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not
reflect the type of care and deliberation that one might expect of such
significant legislation. Cf. Frankfurter, Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court Some Reflections on the
Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a
cartoon “in which a senator tells his colleagues ‘I admit this new bill is too
complicated to understand. We’ll just have to pass it to find out what it
means.’”).
So, knowing the law is faulty, he says, “But that does not
allow this Court to rewrite the Act to fix that problem.” And yet “fix” it
(i.e., put in “the fix,” meaning “to influence the outcome or actions of
(something) by improper or unlawful means: fix a prizefight; fix a jury)[ii]
is what he does.
If there is a bright lining to this dark historical cloud,
it is Justice Scalia’s scathing dissent, joined in its entirety by Justices
Alito and Thomas. Scalia pulls no punches, and he doesn’t beat around the bush.
This is his first paragraph:
 |
| Justice Antonin Scalia (photo by Pete Marovich,/ZUMAPRESS/Newscom) found here |
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
This exasperated explanation is on his second page:
This case requires us to decide whether someone who buys
insurance on an Exchange established by the Secretary gets tax credits. You
would think the answer would be obvious—so obvious there would hardly be a need
for the Supreme Court to hear a case about it. In order to receive any money
under §36B, an individual must enroll in an insurance plan through an “Exchange
established by the State.” The Secretary of Health and Human Services is not a
State. So an Exchange established by the Secretary is not an Exchange
established by the State—which means people who buy health insurance through
such an Exchange get no money under §36B.
If the subsidy would be given for any exchange, then would
be odd to keep referring to the subsidy coming in relation to a state exchange
under §36B. There are places in the vast law, cited by Justice Scalia, that
refer to both the state exchanges and those provided by the secretary of HHS,
and sometimes together those are referred to as “exchanges,” but never in
relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is
referred to, the full phrase includes “state exchange” and the reference to the
part of the law. Not just a time or two, but I believe it was seven times. That’s
not an accident; it’s clearly to delineate when such a subsidy can be given.
Here is one of the more important lines:
Words no longer have meaning if an Exchange that is not
established by a State is “established by the State.”
Whatever else follows this decision, this is the precedent
that was set: words in law no longer have meaning.
It used to be that a court would look at the clear
understanding of the text—what the words mean to reasonably educated people.
And if that left something ambiguous, then the court would look at context, to
see if the ambiguity can be cleared up elsewhere in the law. And sometimes a
law would define a term in a specific way—that would be designated in the law.
(Example: for the purposes of this law, the term “duck” shall be referred to as
“goat.” And then, for that law only, even if nowhere else, a waterfowl we
normally refer to as a duck would be referred to as a goat.)
Roberts actually claims that he is viewing the term “state
exchange” in the larger context, but Scalia schools him on that. Chief Justice
Roberts just got told, “You keep using that word—state exchanges. I do not think it means what you think it means.”
One difference between Roberts and Scalia is that Roberts
thinks he should “help” the lawmakers by ruling, “let’s pretend you wrote it
better.” Scalia does the more natural thing: the law says what it says, and
that’s all it can do. If you don’t like it, the legislature is free to change
the law. As Scalia so aptly puts it:
Perhaps sensing the dismal failure of its efforts to show
that “established by the State” means “established by the State or the Federal
Government,” the Court tries to palm off the pertinent statutory phrase as
“inartful drafting.” This Court, however, has no free-floating power “to rescue
Congress from its drafting errors.”
And,
They made Congress, not this Court, responsible for both
making laws and mending them.
Scalia may be writing the dissent, but his lines will be
most memorable. Maybe especially this one:
We should start
calling this law SCOTUScare.
Son Political Sphere suggests it could aptly be called
RobertsCare, since it is his two bad Obamacare rulings that leave us wondering
what this administration is blackmailing him with.
Scalia adds,
This Court’s two decisions on the Act will surely be
remembered through the years…. And the 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.
If the Chief Justice had as his purpose retaining respect
for the Court, this decision was a big FAIL. His legacy will be that any time
there’s a dispute over the meaning of words in law, the Roberts precedent will
be cited: if it doesn’t mean what it says, we will say it means what we want it
to mean.
That may be many ridiculous things, but it is not blind
justice.
No good comes from a bad Supreme Court decision. Much bad
can come from it. Hold onto your hats; we’ll have more to face Friday and
Monday, the final days of this Court session.
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