A rough barometer, but an accurate one

I have enough lefty friends on social media to get a sense of the general mood on the port side. One would have thought the favorable (for them) decision the Supreme Court handed down yesterday in King v. Burwell would have satisfied them. It didn't. Instead, I saw numerous denunciations of Antonin Scalia's dissent. I'd quote some, but most have so many expletives that I'd have to leave the caps lock on my keyboard for an extended period.

Why not be gracious instead? John Hayward knows why:

One of the most important passages of his dissent comes when he tackles the central contention of the majority head-on. Roberts and the concurring justices argue the words “established by the State” are utterly meaningless in the portion of the Affordable Care Act that deals with subsidies. They’re not even a redundant rhetorical flourish, like saying “cease and desist,” because ceasing involves a good deal of desisting. The majority says those words in the ACA simply do not exist, even though they’re right there on the paper.

“Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government?'” Scalia asks. “Little short of an express statutory definition could justify adopting this singular reading.”

This raises the question of whether King v. Burwell can now be cited as precedent for effectively nationalizing any state resource the federal government covets. Try running through any major piece of state legislation and ask yourself how much sense it makes if “established by the State” now means “established by the State or Federal Government,” or how much chaos we’re in for if Chief Justice Roberts’ highly subjective, political “context” flapdoodle determines what such phrases mean on a case-by-case basis.

It's impolite to point that out, I suppose, but the implications are enormous. I suspect a lot of people are okay with the federal government essentially changing rules on the fly, but it's gonna bite us all in the ass.

Another part of Scalia's dissent speaks to the question I asked yesterday -- if you can get all the goodies, especially the tax subsidies, from the federal exchange, why would the states have to set up their own exchanges?

Far from offering the overwhelming evidence of meaning needed to justify the Court’s interpretation, other contextual clues undermine it at every turn. To begin with, other parts of the Act sharply distinguish between the establishment of an Exchange by a State and the establishment of an Exchange by the Federal Government. The States’ authority to set up Exchanges comes from one provision, §18031(b); the Secretary’s authority comes from an entirely different provision, §18041(c). Funding for States to establish Exchanges comes from one part of the law, §18031(a); funding for the Secretary to establish Exchanges comes from an entirely different part of the law, §18121. States generally run state-created Exchanges; the Secretary generally runs federally created Exchanges. §18041(b)–(c). And the Secretary’s authority to set up an Exchange in a State depends upon the State’s “[f]ailure to establish [an] Exchange.” §18041(c) (emphasis added). Provisions such as these destroy any pretense that a federal Exchange is in some sense also established by a State.

Reading the rest of the Act also confirms that, as relevant here, there are only two ways to set up an Exchange in a State: establishment by a State and establishment by the Secretary. §§18031(b), 18041(c). So saying that an Exchange established by the Federal Government is “established by the State” goes beyond giving words bizarre meanings; it leaves the limiting phrase “by the State” with no operative effect at all. That is a stark violation of the elementary principle that requires an interpreter “to give effect, if possible, to every clause and word of a statute.” Montclair v. Ramsdell , 107 U. S. 147, 152 (1883).

In weighing this argument, it is well to remember the difference between giving a term a meaning that duplicates another part of the law, and giving a term no meaning at all. Lawmakers sometimes repeat themselves—whether out of a desire to add emphasis, a sense of belt-and-suspenders caution, or a lawyerly penchant for doublets (aid and abet, cease and desist, null and void). Lawmakers do not, however, tend to use terms that “have no operation at all.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

So while the rule against treating a term as a redundancy is far from categorical, the rule against treating it as a nullity is as close to absolute as interpretive principles get. The Court’s reading does not merely give “by the State” a duplicative effect; it causes the phrase to have no effect whatever.

Why is this important? Back to Hayward:

Another part of the ACA conditions financial assistance to states on whether they are “making progress” toward establishing an exchange. “Does a State that refuses to set up an Exchange still receive this funding, on the premise that Exchanges established by the Federal Government are really established by the States?” Scalia asks. He knows the answer, and he knows how the feckless ObamaCare-supporting majority gets there: by randomly, politically deciding that sometimes the words “exchange established by the State” have meaning, and sometimes they do not.

If not for this “interpretive jiggery-pokery,” as Scalia calls it, the Roberts decision could actually bring ObamaCare crashing down even more thoroughly than ruling the subsidies illegal would have. Among other things, there wouldn’t be any way for weak-kneed GOP leaders to apply a quick, painless-to-Democrats legislative patch to keep the S.S. ObamaCare afloat after dozens of holes were blown beneath her waterline.

Scalia also catches the majority in a rather breathtaking act of dishonesty when they pretend to be surprised and confused that the ACA would make a large number of people theoretically eligible for tax credits at first, then zero those credits out if their insurance was not purchased on an exchange “established by the State.” In fact, as Scalia notes, tax credit laws usually do work that way, for a variety of administrative reasons, including the way people often move between states in the middle of a fiscal year. I strongly suspect the majority only pretended not to be aware of what Scalia says in this passage.

It simply doesn't make sense to impose financial penalties through the statute for states that don't set up their own exchanges and then to say, oh, we weren't really serious about that anyway.

The good news? If my lefty friends are troubled by Scalia's dissent, it means they still have a few wisps of conscience about supporting the larger implications of this decision. Scalia's sin is reminding them of it.