Thursday, June 25, 2015

Getting It Wrong

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.”

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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