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Hamlet may have been speaking of his mother, or his significant other, Ophelia. And Justice Anton Scalia in his dissent may have been speaking of Health Secretaries Burwell and Sibelius, or the six Justices who took the other side of the Burwell case. But anyone who knows his Shakespeare recognizes the outrage in his voice when he repeatedly intoned "Frailty, thy name is..." several times, changing only the name of the person into the fault he is deploring. He goes on for 21 printed pages, but his summary suffices:
Today's opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sibelius, 567 U.S., this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual "shall" maintain insurance or pay a "penalty." 26 U.S.C. pp5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. 567 U.S. at__(principal opinion) (slip op., at 15-45) The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U.S.C. (principal opinion) (slip op., at 45-58). 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 SCOTUS-Care.Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established 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.
Originally published: Thursday, June 25, 2015; most-recently modified: Tuesday, May 21, 2019