Smart. Sharp. Funny. Fearless.
Saturday, May 26, 2018

WASHINGTON — Republican leaders in the House and Senate have made clear that they’ll deploy every weapon in the legislative arsenal to repeal the Affordable Care Act. They’ll try to chip away at the taxes that support it and abolish the mandates that make its insurance markets work.

They might even stand on their heads and stop breathing if that would do the trick.

It’s a shame they are approaching matters this way. Various provisions of the ACA have helped well over 100 million Americans, including about 20 million who gained coverage or got new insurance under the law.

In a rational republic, both parties might try to figure out how to improve the law. Why wreck it? But elections have consequences. So if Republicans invest a lot of energy in attempting to kill the thing — well, this is exactly what they told the voters they’d do.

It’s something else again if another part of the conservative power structure does a lot of the dirty work in undermining the law before Congress has to. I refer here to the hyper-activist conservative justices on our Supreme Court.

To the shock of many neutral legal analysts, four justices decided to take up an absurd legal challenge to the ACA even before a lower court can rehear the case and before there is a conflict that typically triggers the high court’s involvement.

At issue is one phrase in the law that, in the worst possible construction, is a drafting error. It declares that subsidies to help people buy insurance will be available to those who were enrolled “through an exchange established by the State under [section] 1311.”

Conservative legal beagles, ignoring every other word in the statute, claim that those words “by the State” mean that any state that chose not to establish a health insurance exchange deprives its citizens of the federal subsidies they’re entitled to under the ACA. Since 37 states are expected to rely this year on the federal exchange envisioned by the law rather than establish their own, a ruling of this sort could deprive millions of their subsidies — and make a mess of the law.

Now, let’s be clear: Not even the most conservative Supreme Court justices seemed to think this language was a problem before the conservative lawyers went to work.

In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.”

In a Washington Post op-ed article, five of the law’s lead architects, two senators and three House members, wrote: “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.” Conservatives are supposed to care about “original intent.” Well, here it is.

There’s another conservative legal school called “textualism,” which, as the name suggests, involves paying close attention to the actual text of a statute. Abbe Gluck, a Yale Law School professor, has written a very helpful article on SCOTUSblog that not only points to the straightforward reading of the law that the conservative justices offered in that earlier dissent but also cites none other than Justice Scalia to guide us as to what textualism demands.

Textual interpretation, Scalia insisted, should be “holistic” and “contextual,” not “wooden” or “literal.” Courts, he said, should adopt the interpretation of a law that “does least violence to the text,” declaring that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”

If Scalia wants to be true to his own principles, can he possibly side with a convoluted reading of the law that apparently never occurred to him before?

Here’s a hypothetical for you: First, the Supreme Court issues a ruling that installs a conservative president. Then, he appoints two conservative Supreme Court justices who then join with three of their colleagues to make mincemeat of the greatest achievement of a progressive president elected by a clear majority. If such a thing happened in any other country, would we still call it a democratic republic?

E.J. Dionne’s email address is Twitter: @EJDionne.

Photo: Shawn Calhoun via Flickr

Want more political news and analysis? Sign up for our daily email newsletter!

70 Responses to Obamacare Vs. Scaliacare

  1. This latest attempt to repeal the Affordable Care Act has a lot more to do with extreme ideology and hatred, than wording or the intent of the language used in the ACA legislation. Everybody knows what the ACA is meant to accomplish, everybody should know how beneficial it has been to millions of Americans who could not afford the high health insurance premiums charged before the ACA was implemented, everybody should know that there are millions of Americans enrolling during the open enrollment period that is underway, everybody should know that ending some of the draconian clauses that excluded so many Americans from getting health insurance before ACA, and that contributed to many having to sell everything they owned to get the medical care they needed to stay alive was desperately needed, and everybody knows that without subsidies to help some of our most vulnerable citizens get the preventive medical care that we all need to live a healthy life, the Affordable Care Act would come to a screeching halt. Not surprisingly, the ACA detractors, Obama haters, and the disciples of the anti-Christ looked for an found a way to kill one of the most needed social programs we have. Whether or not the Supreme Court goes along, ignores the Constitution and the needs of millions of Americans, and pursues partisan politics remains to be seen, but considering how quickly they jumped into this matter, I think it is fair to say that the vote of at least three “Justices” (Scalia, Alito and Thomas) are already guaranteed. This may turn out to be a litmus test for Justice Roberts, who in spite of his conservatism, has demonstrated a level of pragmatism and adherence to the law that his most radical colleagues continuously ignore.

      • Maybe we could get the Pope to excommunicate these five guys if they vote to scrap the subsidies for federal-exchange enrolees.

      • In reality, they are not “pro-life”, they are only “pro-fetus”. Once the fetus turns into a human, all bets are off. Not health care. No help for the mother is she can’t afford to care for the baby. No help later in life should she end up having to live in poverty and be unable to provide the child with food and the proper healthcare.

        And sadly even before that, there’s a fair risk the fetus may not survive being born – 12 of 15 states with the highest infant mortality risks (and that includes babies not living to their 1st birthday) are Red States.

    • And since the newly minted (by the results of the last election) Plutocratic Party will become the majority in both the House and Senate in January, the future of the Supreme Court has become delightfully predictable for the plutocrats, their propagandists, and the always dependable, ill-informed redneck dupes in the rural outbacks of the red states: Much better to have them real American patriots in charge to fight them socialist libruls and save the citizens’ freedom to fend for themselves in all circumstances and alweez keep the gummint out of their lives.

    • Scalia, Thomas, Alito, Roberts and Kenney are all white, conservative Roman Catholic males something most people I know do not realize. If they listened at all to this new Pope they would not be allowing a nitpicking challenge to a law that ensures health care for millions. Talk about a death panel!

        • Doing their jobs requires not looking forways to impose their political biases or religious beliefs on the rest of us. Scalia’s example of his violating his own position on textual interpretation is a perfect example of him doing just that.

          • You just described liberal activist judges.

            PS…. his position is the text is what it says. Liberals seem to think otherwise. It helps liberals in imposing their political biases and religious beliefs on the rest of us.

          • So, how does he view the liberty aspect of the due process clause in the jurisprudence of the Fourteenth Amendment?

          • I don’t know but however he views it, I am sure your view is much more the correct and only view in your mind.

          • “I am sure your view is much more the correct and only view in your mind.”

            I see. You are sure about me and some others on this thread, however you obviously are not sure about the jurisprudence of Scalia whom you are defending as a constitutional textualist. I guess that is tantamount to your confessing that you have little idea of what you are talking about.

          • Yes, every other month or so I waste some time to come here to see what nonsense the leftists are being brainwashed with.

          • Just today. Unlike you, I won’t be here tomorrow, or the next day, or the next day, or the next day…..

          • Good. Best of all, never come back and don’t let the door hit you on the way out….we don’t have any need on this blog for absolute losers!!!

          • Funny thing is, you will be here tomorrow, on this liberal rag, agreeing with other leftists you don’t know all day long, as I will not visit this rag again for several months.

          • You should study logical fallacies. Ad hominem attack, which is what your name calling amounts to is a classic example of a failure to argue logically. I learned that in my logic class at my Catholic school, by the way.

          • Talking about brainwashed, it’s totally clear that you have been.

            Try real hard and list for me two things that a Republican Congress or President has ever pressed for or actually gotten passed into law that have been a real benefit to Gregin.

          • No his stated position is that the text should be considered as a whole, as opposed to taking statements in the text literally as this challenge does. If Scalia was consistent with his stated position he would have refused to take this case based on a literal reading of just one sentence that clearly was not the intent of the elected legislators who wrote the law (which that have explicitly stated – see the article). It is possible, of course that Scalia was not one of the four who chose to hear this but everyone is assuming he was.

          • I don’t see where he is not taking the text as a whole. He just isn’t pretending to read something that isn’t there, as you are.

            You don’t find the article biased? (no suprise there)

          • And now is the time! A black president, a black woman AG and a black Supreme Court Justice. The stars are in alignment.

        • NO, they are there to be unbiased and just! They are NOT there to impose their beliefs and idealogies on the Nation as a whole!

        • Too funny! I obviously had a senior moment when I wrote that. Actually I think the fact that he is black is part of the reason most people I know don’t realize he is a Catholic.

          • I am a member of a large, close Irish Catholic family and have many Catholic friends – especially those from the Catholic university I attended.
            My parents were devout and accepted the teachings of the Church as divinely inspired but did not believe they had they right to impose their beliefs on the rest of society. For example they agreed with the Church’s opposition to abortion but also understood that it was based on the teaching that a soul was infused at the moment of fertilization into an egg so it should not be destroyed. But they also understood that this was a belief grounded in faith, not science and should not be imposed on the rest of society. (No one thinks an acorn is equivalent to an oak tree yet biologically an acorn is the same as a fertilized human egg. )

    • If he calls himself Catholic and incorporates his religion in his decisions, does this mean that he mixes church with state while the Constitution clearly states the separation of church and state? If so, shouldn’t he be impeached for being unconstitutional?

  2. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his

    Federalist 10

    I’ve often had The Federalist quoted at me by conservatives. I wonder if they’ll take note of Madison’s observation and think about Scalia and Thomas. They’re frequently associated with conservative ideology so their opinions should be suspect.

  3. @GreginPottsville:disqus til I saw the bank draft which was of $8902, I be certain …that…my sister was truly earning money part time from there labtop.. there neighbour has done this for only about eighteen months and resently cleard the mortgage on their home and bought a brand new Toyota. this is where I went.▇▇▇▇▇▇▇▇✒✒✒..&nbsphttp://GoogleProjects/get/position/Vip-salary

  4. I admit I have nothing os substance to add to this discussion. I expect the worst. All I want is to add Scalia to my bucket list of those upon whose graves I will gleefully urinate over when they so richly drop dead. 🙂

  5. Doctors are taught : first do no harm. This is what the conservative justices on the supreme court intend to do. A ruling killing subsidies will deprive millions of Americans access to health insurance, and through the system into chaos. Insurance companies will have to drop anyone that cannot afford coverage without federal help. Also if the law becomes unworkable, hospitals and providers all over the country will, all of sudden, have patients that won’t be able to afford their bills. So does treatment stop? What if it’s cancer treatment? What if they took away insurance coverage for all supreme court justices? This is where ideology meets reality. It will also shift the burden to provide stopgap coverage to those millions to a republican caucus that couldn’t even pass many bills in the republican controlled house. It will also shift the cost burden to states that would now have to reimburse hospitals for costs that patients can’t pay. How is this working out in Georgia where they refused to set up exchanges or take the Medicaid expansion? 8 rural hospitals already closed. Healthcare workers laid off.
    Incoming republicans never intended to repeal this law in it’s entirety, just tinker enough to make a few changes and say they did something. SCOTUS will throw coal on this fire before the fire dept. is ready. In the most ironic of all KYCONNECT the exchange that over 400,000 Kentuckians rely on would be crippled as will all exchanges. Kentucky is a poorer state that relied on subsides to expand coverage. If they are ruled unconstitutional what would McConnell say? That would be just deserts.

  6. Nice try, E.J. You’re distorting Scalia’s dissent in the NFIB case. Here’s the link: The system of “incentives” that Scalia discusses on page 60 of his opinion relates to the incentives of tax subsidiaries for *insurers to participate in the exchanges*, not the incentives for states to set up their own exchanges. You make it sound like Scalia et al. already judged the issue in NFIB and will be arbitrarily reversing themselves. In fact, they have never opined on the issue in the King case.

  7. Obamacare isn’t about more choices and lower prices, it’s about fewer choices, higher prices, and centralized control over your medical care.

    • Since when non-coverage of pre-existing conditions, continuance of fraud health insurances, excessive premiums to cover administration bonuses, coverages of medical costs caused by non-insureds by tax payers, non-health protections for Americans is more reasonable than the Affordable Health Care Act?

  8. Is Scalia Constitutional? Is Scalia above the law? He made decisions based on his religion while the Constitution clearly states the separation of church and state. He made decisions in favor of Republicans by participating in the Koch brothers’ pro-Republican summit meetings while the Constitution clearly states the separation of Justice and Legislation. When will Scalia be impeached?

  9. Obama lied to the American Medical Association on June 15, 2009 when he claimed that you would be able to keep your doctor.

Leave a reply