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Wednesday, December 7, 2016

Justice Antonin Scalia did not simply lose today’s key ruling on the federal health insurance subsidies for the Affordable Care Act — he had his own previous arguments turned against him.

The majority opinion issued today, written principally by Chief Justice John Roberts — whose crucial vote previously upheld Obamacare back in 2012 — illustrated the idea of the insurance subsidies being an integral part of health care reform itself.

And the absurdity of just striking out subsidies for people living in states with federally run exchanges — as Scalia and his fellow dissenters insisted had to be done under the law — was illustrated by citing… Antonin Scalia, from his earlier efforts to stamp out health care reform.

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 […] (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) […] (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

That is, Roberts and company cited the dissent in the first major Obamacare case, from 2012, when the dissenters — Scalia being one of them — tried to say that pretty much each every single facet of the Affordable Care Act was not only wrong but unconstitutional, and that they interlocked so completely that by striking down even one of them, the entire Act would have to fall.

As a political staffer friend, who is a trained lawyer (though not currently practicing), tells me: “The problem with results-oriented jurisprudence is it makes hypocrisy easy to spot.”

The full paragraph in that original dissent is as follows:

In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. […] That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.

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