Civitas Review

The Best Lines from Scalia's King v. Burwell Dissent


Every cloud has its silver lining. Despite the U.S. Supreme Court again bending over backwards to uphold the Affordable Care Act, the good news is that we get to read yet another scathing Scalia dissent. In writing that the Court has essentially rewritten the law to accommodate the IRS's desired interpretation, Justice Scalia once again reminded of us how he pulls no punches and takes no prisoners.

His dissent began in typical fashion:

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.

He then commented on the majority's interpretation of the clear words of the Affordable Care Act:

Words no longer have meaning if an Exchange that is not established by a State is "established by the State." It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words "established by the State." And 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.

However, Justice Scalia suggests that normal rules of interpretation do not matter to Chief Justice Roberts:

Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

And that wasn't the end of it —

Having transformed two major parts of the law [in past decisions], the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an "Exchanges 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.

Finally, Scalia noted the damage that today's decision and others like it have done to the reputation of the Supreme Court:

[T]his Court's two decisions on the [ACA] will surely be remembered through the years. The somersaults of statutory interpretation they have performed ("penalty" means tax, "further [Medical] payments to the State" means only incremental Medicaid payments to the State, "establishment by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. 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. I dissent.

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