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Thursday, October 27, 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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  • photojack53

    It is SO ironic, but satisfying to see Scalia’s own arguments turned against him. What a hypocrite!
    The Affordable Care Act is already making your coverage more secure.
    •Insurance companies no longer have unchecked power to cancel your policy, deny your child coverage due to a pre-existing condition, or charge women more than men.
    •Over 86 million Americans have gained from coverage of preventive care free of charge, like mammograms for women and wellness visits for seniors.
    •Nearly 13 million Americans will receive a rebate this summer because their insurance company spent too much of their premium dollars on administrative costs or CEO bonuses.
    •The law has already helped 5.3 million seniors and people with disabilities save an average of over $600 on prescription drugs in the “donut hole” in Medicare coverage.
    •The law’s provisions to strengthen and protect Medicare by fighting fraud will continue.
    •The law has helped 6.6 million young adults who have been able to stay on their parents’ plans until the age of 26, including 3.1 million young people who are newly insured.
    “Mitt Romney said, President Obama’s health care law “represents a government takeover of health care.” Rated – PANTS ON FIRE FALSE. on CBS 6/28/2012 John Boehner told this same lie! Then again on Face the Nation Sunday Boehner told the lie again.
    “Make the lie big, make it simple, keep saying it, and eventually they will believe it” ~ Hitler Quote.
    This is the OBVIOUS strategy of the GOP, Fox (Faux) “news” and Rush Limbaugh!

    • Dominick Vila

      Great post!

  • angryspittle

    No legalistic jargon for Fat Tony……..

    • FireBaron

      It’s “Nino” not “Tony”. And I ain’t even one of his fans! Of course, Joe Mantegna did a much better job of portraying him on the TV show than he does himself.

  • Insinnergy

    And this guy is meant to be a sharp, non-partisan legal mind?
    You can’t argue exact opposite positions when the case doesn’t suit your political leanings. What is even more scary is that he doesn’t seem to be bothered by doing so, or telling the other side that they are being partisan. WWTTFF?

    Time for term limits on the Supreme Court.

    • Billie

      Time to start electing judges and not appointing them. It’s the American way or should be.

      • Allan Richardson

        Most Southern Dixiecrat states have always had elected judges. The problem is that those judges win elections by hinting (because the Bar forbids them from openly advocating hypothetical cases) that their voter base can count on them to rule against minorities, to be tough on crime but not picky about guilt or innocence for the “criminal class,” to side with prayer-in-school or anti-abortion or pro-gun groups BEFORE ANY SUCH CASE COMES UP.

        Some have gone to a half and half system: when there is a vacancy, the governor appoints a technically qualified lawyer (from a list of people vetted in advance by the Bar Association), and in the next election (or after two or four years), the judge comes up for a yes or no vote. Since most people do not follow judges closely enough to have a specific reason to vote “no” (and so will leave that ballot line blank or vote “yes” by default), only the unquestionably worst judges (caught in flagrante delicto with their hands, or other body part, in the wrong pocket, or body opening) really EARN a “no” and they can be impeached without waiting for an election. Most judges defeated for re-election, therefore, are defeated because some pressure group doesn’t like something they said, or the way they ruled, in one particular case, and starts a campaign against them.

        So any way of selecting judges has its drawbacks.

    • FireBaron

      Scalia never has pretended to be non-partisan. The scary thing is we no longer consider Sam Alito to be Scalia-lite, but Scalia to be Alito-lite! As the youngest member on the Bench, Sam Alito will be around for another couple of decades.

  • The lucky one

    Maybe Scalia should follow Thomas’ example, just cast your vote and shut up.

  • Mel Daly


    • Independent1

      Absolutely! The nine SCOTUS Judges should serve a rotating 18-year term so a president would appoint 2 judges during each 4-year term in office.

  • Grannysmovin

    Perhaps Scalia is beginning to show the early signs of Alzheimer’s Disease and it is time to retire.

  • jmprint

    Jiggery-Pokery – This man is oozing with intelligence. I guess anybody can be Judge and President now a days.

  • FT66

    It doesn’t matter whether you are a republican sitting at A HIGH BENCH or not. All of them behave the same.

  • hicusdicus

    The man is correct and if you don’t understand this you can kiss your children’s freedom goodbye. This is more than politics, it is your future. Feely good things usually don’t work out.

    • Allan Richardson

      Freedom isn’t worth much if you need lifesaving surgery and no doctor will do it because you can’t afford it personally and no insurance company (not even the one whose policy you thought you had) will cover you. You can only choose whether to kill yourself with a gun (which your political allies are happy to allow you to buy regardless of whether you are responsible of not) or other weapon, wait to die at home, or go on the road and wait to die somewhere away from home.

      The move to repeal Obamacare, rather than improve it by adding Medicare for all (as it was intended to be in the 1960s), is a JOBS PROGRAM FOR THE FUNERAL INDUSTRY, because it will return us to the 15,000 people a year dying of diseases for which they COULD have been successfully treated, if not for lack of money or insurance coverage. Not to mention the millions who will not have such conditions, but will have no ASSURANCE of help if they develop them. There are still more uninsured (not by choice) Americans than there should be; ideally there should be none. But Obamacare has been successful to the extent that there about a million FEWER uninsured not by their choice than there were before.

      Fifteen thousand deaths a year … the death equivalent of the 9/11 attack being repeated FIVE TIMES EVERY YEAR. We got into ten years of war by our anger at the ONE attack, but we cannot muster the will to prevent the same death toll, times five, EVERY year. In fact, many of our politicians and business bosses seem to PREFER that more people die uninsured, or struggle through life uninsured, and have BRAINWASHED people like Hiccup here into approving such policies, even if THEY THEMSELVES should be harmed, citing a fictitious “freedom.”

      Someone in pre-revolutionary France said that “the poor and the wealth have an equal right to sleep under bridges.” There’s your “freedom” when you have no resources with which to exercise it.

      • hicusdicus

        Why are you telling me all this? Its nothing but conjecture and most of it is socialized nonsense. Peoples life style is what causes them most of their health problems. The health industry is getting filthy rich treating these people and you are paying for it. Go to Walmart and look at the people walking around with their bellies hanging over their belt with a liter bottle of sugar water in their hand being followed by two or three little obese children with a grocery cart full of junk food. They will have to wait till they get outside to lite up their cigarette . As soon as they get home they can break open their 30 pack and spend the rest of the evening drinking and sitting on their butts and watching the tube and contemplating how to piss away their next government check. These people want insurance but they don’t want to pay for it. They want the taxpayers to give it to them. Do you really care what happens to them? You going to shrink your life style to help them live on the dole. You are being a pompous fake so quit spouting how righteous you are. When the financial collapse finally rears its ugly head you will be boo hooing all the way to the welfare office and most likely get mugged on the way. What ever you do don’t arm yourself because that is not something descent people do. All I really care about is my own family, the rest of you are on your own. Me and mine will survive, you won’t.

        • dpaano

          Idiot….those people are actually fewer than you think….what about people who predisposed to MS, diabetes (not always caused by not eating right or anything else), cancer, etc.? I suppose you think that those people have no right to health care either just because they might be poor? You, sir, are NOT a Christian as you have NO compassion for your fellow man or woman! And, these people don’t expect the government to pay for their insurance….they can pay with some assistance. I’d rather they have SOME insurance and pay what they can than for MY taxpayer money going towards their visits to the ER because they DON”T have insurance! Ridiculous….and it’s people like you that are trying to ruin our country!

          • hicusdicus

            Is that part of your MENSA qualifications to call people idiots that don’t agree with you misguided line of thinking? I am sure your arrogance will never let you admit that you are misinformed. You really seem to have an affinity for telling people what they think. You are right I am no Christian. I don’t believe in the after life or magic, that is for the folks who need a crutch to face the hardships of life. I guess that is you. I know ! you can start an insurance company just for people who would rather buy cigarettes, booze and illegal drugs than pay insurance premiums. You are just another foolish activist who is going to save humanity whether they want it or not.

    • dpaano

      Things worked out just fine!!!

      • hicusdicus

        What are you talking about? I doubt if you actually know. All you seem to want to do is be arrogant and bossy and get your way no matter what the consequences. In my world I refer to people like you as passive evil..

  • Independent1

    Scalia dissenting only goes to prove that he, like several of the SCOTUS judges have been bought and paid for by at least the likes of Sheldon Adelson and the Koch Bros. You simply can’t traipse out to Las Vegas and get wined and dined by right-wing ed political donors like Scalia and some other judges have without ending up owing favors back. ,

  • Dominick Vila

    Scalia, Alito, and Thomas should join the rest of the specimens at the Smithsonian museum of natural history. Hopefully we will all demonstrate the determination and convictions needed to ensure jurists like them are never nominated to the SCOTUS ever again. Vote!

  • dpaano

    Scalia’s never been the brightest egg in the dozen…..he proves it on a daily basis!