The Supreme Court upheld 6-3 the Affordable Care Act's insurance subsidies this morning, delivering a huge win for President Obama and health care advocates. But, from the lines that have been circulating so far from the decision, Associate Justice Antonin Scalia, on page 21 of the dissent, may have already won for snarkiness.
Scalia is remarking, of course, on the fact that the Supreme Court has now repeatedly upheld "Obamacare" from major challenges. The first time came in 2012, during the presidential election, when the Court upheld the constitutionality of the law. In this case, Scalia argues that the court rewrote the law to turn a "penalty" for not holding insurance into a "tax." Also in this case, he argues, the Court ignored the ACA's language witholding federal funding for Medicaid, the health program for people in or near poverty, if a state refuses to expand its Medicaid program. Instead, the Court found that the federal government could withhold only the additional funding granted for a Medicaid expansion.
Needless to say, many legal analysts -- and the Court itself -- differed with Scalia on these points.
Here's the full excerpt from the final page-and-a-half of Scalia's dissent.
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. Sebelius, 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 else pay a “penalty.” 26 U. S. C. §5000A. 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. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. 567 U. S., at ___–___ (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 SCOTUScare.
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.