My congratulations to the Supreme Court. Today, following its 1973 precedent of making a federal ruling on the constitutionality of abortion – which cannot be found anywhere in the constitution – it has written a meaning about legislation that cannot be found anywhere in the legislation it has just ruled on.
Today, instead of striking down the federal exchange subsidies for ObamaCare on the grounds that the legislation specifically restricted them to exchanges “established by the state” (the legislation\’s words, not mine), the Supreme Court decided to give it a mulligan, by saying, in effect, that “well, they just made a mistake in how they drafted it”.
Do you think that is the function of the Supreme Court? To help congress – one side of the aisle, that is – and decide what the specific wording of its legislation really means, by ignoring what it explicitly says?
Well, what you or I think is irrelevant. It is done.
I will end with this part of dissenting justice Antonin Scalia\’s reasoning (with some legalese wording left intact). See if you think it makes sense:
Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” Ante, at 14. This Court, however, has no free-floating power “to rescue Congress from its drafting errors.” Lamie v. United States Trustee, 540 U. S. 526, 542 (2004) (internal quotation marks omitted). Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” Ante, at 14. But the Court does not pretend that there is any such indication of a drafting error on the face of §36B. The occurrence of a misprint may also be apparent because a provision decrees an absurd result-a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges, 4 Wheat., at 203. But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately-for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.
Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act-none at all-contradicts the limitation of tax credits to state Exchanges.
Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange 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.
Does Mr. Scalia have a point? I\’d say he does. How about you?
