gracchusdixit

By a decisive 6-to-3 vote, the Supreme Court of the United States has, for the second—and, one can only hope, the last—time, upheld the constitutionality of the Affordable Care Act against a challenge from its die-hard opponents on the far right.  In this instance, the majority rejected the argument of the plaintiffs in King v. Burwell—a transparently frivolous law suit instigated and subsidized by the Koch brothers—claiming that a single sloppily written clause in the Act invalidated the whole.

The clause in question, which appears in Section 36b of the Act, stipulates that federal subsidies be provided to those who enroll in insurance “exchanges established by the State”.  Taking “the State” to mean “the States,” the plaintiffs argued that no subsidies can legally be provided in any state which declines to set up its own exchange, relying on the federal exchange instead.  Without federal subsidies, of course, millions would lose their insurance, and the Affordable Care Act would very likely collapse.

From the beginning, it was clear to most legal experts that the argument of the plaintiffs was factually incorrect and absurd.  No legislator involved in crafting the law, either Democrat or Republican, has ever said that such an exclusion was contemplated, because to have done so would have doomed the Act to failure.  What’s more, numerous references to federal subsidies appear elsewhere in the Act and are unambiguous with respect to its intent—that all citizens should be able to obtain affordable health insurance, whether in state-run exchanges or in the exchange run by the federal government.  The language of Section 36b is unquestionably sloppy, but it could scarcely be considered a statement of legislative purpose, let alone decisive in determining the fate of the Affordable Care Act as a whole.

Chief Justice Roberts—who, despite his conservative inclinations, cast the deciding vote in upholding the ACA against its first challenge—put the matter succinctly:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36b can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

You might imagine that this straightforward expression of common sense from an otherwise staunchly conservative Chief Justice would have put an end to the debate once and for all.

It did not, however, satisfy the infinitely irascible Antonin Scalia or his sclerotic conservative colleagues, Joseph Alito and Clarence Thomas.  Scalia’s dissent was more sarcastic than usual—which is saying something, given the glib and arrogant contempt he routinely showers on any judgment with which he disagrees.  This time, Scalia went beyond his customary logic-chopping and got personal.  He accused the majority of being “prepared to do whatever it takes to uphold and assist its favorites,” in other words, of bending the law to fit their purported ideological purpose.

Coming from anyone else, this would be laughable.  Coming from Scalia, it is nothing less than ludicrous.

It was Scalia who, nearly twenty years ago, wrote a book called “A Matter of Interpretation,” in which he set out to provide a comprehensive theory of how the Federal Courts should interpret statutes, i.e., laws passed by legislative bodies.  He argued that courts should stay clear of trying to determine “legislative intent,” which he judged to be unknowable and in any event irrelevant.  He proposed, instead, that judicial interpretation should focus exclusively on what a given law says—or “promulgates”.  In Scalia’s view, nothing else matters: not history, not legislative process, not the intentions of the lawmakers, not the needs or problems a given law hopes to address.   The only thing that counts is the language of the law itself.   The name he gave to this interpretative theory was “textualism”.

Even if you accepted this dubious proposition, you’d still be left with the question: what happens when the “text” of a law is ambiguous or even contradictory, when, as is most certainly the case in the Affordable Care Act, one part of a statute appears to conflict with another?

In such cases, Scalia declared, “Context is everything.”  In other words, the totality of a law must guide the interpretation of its particular details—all the more so when any of those details are unclear.  Regarding which, Scalia went on to observe: “The Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation.”

The man who wrote these words, the man who claims to venerate text and context above all else, is the same man who chose to ignore his own “interpretative theory” by disregarding the clear context of the Affordable Care Act.  If anyone can rightfully be accused to doing “whatever it takes” to uphold and assist favorites,  of bending the law to suit an ideological purpose, it isn’t the majority in King v. Burwell, it is Antonin Scalia.