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On Justice Scalia’s Dissent In King v. Burwell

25 June 2015 @ 21:54

“Where Law ends, (says Mr. Locke) tyranny begins, if the Law be transgressed to anothers harm”.  No one I believe will deny the truth of the observation….

—Samuel Adams, writing unsigned in the Boston Gazette, 17 October 1768

Roberts: your prone position in infamy is assured.

Chris Smith [Smitty]

The six Philosopher-Tribunes on the Supreme Court have spoken from their leather thrones…and the Dictator is well-pleased.

As Mark Steyn put it this afternoon:

…By a 6-3 majority of the Supreme Court, it has been determined that the words “established by the states” now mean “established by whatever”. Boy, that John Roberts is really growing in office.

Indeed!  He has become the disciplined dog of The Jarrett Junto.

In his Majority Opinion, Chief Lustrous Roberts is not even bothering to hide his contempt for The Constitution and The Rule Of Law any longer.  He is a Despot, changing the meaning of Laws for the sake of the political whims of the moments, doing so by any means necessary [and, as you’ll see, by putting Logic on The Rack, twisting it so badly that it shatters into a million pathetic pieces].

Justice Antonin Scalia has written a brilliant Dissent, one that is crisp and clear in it’s Common Sense and Right Reason, and devastating in it’s indictment of the Tyrants and their Corruptions.

The Dissent runs to twenty-one pages, so I thought it might be useful to provide highlights of his main points for reference purposes and for those of you who are unable to read it all at this time.  However, I do strongly urge you to do so at some point if you wish to fully understand why today’s decision is  repugnant to The Constitution, The Founding, and to everything that is Honest and Decent and True [and because in my reading and marking-up of it, I may have missed some of his important points].

I would also urge you to read William Jacobson’s commentary on the decision [tip of the fedora to Mark Levin] and listen to the first ninety minutes Mark Levin’s show from tonight [25 June].

In his dissent, Justice Scalia rails especially against ‘the Court’s pretense that applying the law as written would imperil “the viability of the entire Affordable Care Act.”’

He begins thusly:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

It is not merely Absurd, but both Comical and Idiotic.

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State — which means people who buy health insurance through such an Exchange get no money under §36B [BOB: See the next excerpt for an explanation of this Section of the ACA].

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.  …Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

Indeed.  Methinks Roberts wants it to succeed, to flourish [of course: he’s not subject to it].

The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges — both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Ante, at 21.

Natural is Normal, so, I guess, Roberts has decided that a Perverse reading is called-for here.

…Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government”? Little short of an express statutory definition could justify adopting this singular reading. Yet the only pertinent definition here provides that “State”means “each of the 50 States and the District of Columbia.” 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State.

‘Eccentric’?…you’re being too kind, Justice Scalia.

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.

Utterly — that is, if you believe that Reason should govern the affairs of Men.

…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….

Making matters worse, the reader of the whole Act will come across a number of provisions beyond §36B that refer to the establishment of Exchanges by States. Adopting the Court’s interpretation means nullifying the term “by the State” not just once, but again and again throughout the Act….

In practice, I think it eliminates the Sovereignty of the Several States, because The Court has said the definition of ‘State’ is whatever those in Power And Control say it is, from moment-to-moment, necessity-to-necessity.

Congress did not, by the way, repeat “Exchange established by the State under [§18031]” by rote throughout the Act. Quite the contrary, clause after clause of the law uses a more general term such as “Exchange” or “Exchange established under [§18031].” See, e.g., 42 U. S. C. §§18031(k), 18033; 26 U. S. C. §6055. It is common sense that any speaker who says “Exchange” some of the time, but “Exchange established by the State” the rest of the time, probably means something by the contrast.

‘Common Sense’?!? — that’s something Dead White Males invented and is, therefore, Doupleplusungood in this Age Of The Illuminated Ones.

It is probably piling on to add that the Congress that wrote the Affordable Care Act knew how to equate two different types of Exchanges when it wanted to do so. The Act includes a clause providing that “[a] territory that . . . establishes . . . an Exchange . . . shall be treated as a State” for certain purposes. §18043(a) (emphasis added). Tellingly, it does not include a comparable clause providing that the Secretary shall be treated as a State for purposes of §36B when she establishes an Exchange.

Seems to me that any Secretary that dares enforce this Despotic Law should be treated with permanent Contempt.  —And every one of Territories should declare their Independence from us as soon as they can to save themselves.

Faced with overwhelming confirmation that “Exchange established by the State” means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible conclusion that Congress used “by the State” to mean “by the State or not by the State.”

‘Feeble’ thy name is Roberts!

The Court has not come close to presenting the compelling contextual case necessary to justify departing from the ordinary meaning of the terms of the law. Quite the contrary, context only underscores the outlandishness of the Court’s interpretation. Reading the Act as a whole leaves no doubt about the matter: “Exchange established by the State” means what it looks like it means.

Ah!…but you’re not looking at it in a funhouse mirror like you should be, Justice Scalia.

…Could anyone maintain with a straight face that §36B is unclear? To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used….

Zing! [that’s gotta hurt, Johnny].

The Court protests that without the tax credits, the number of people covered by the individual mandate shrinks, and without a broadly applicable individual mandate the guaranteed-issue and community-rating requirements “would destabilize the individual insurance market.” Ante, at 15. If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says. Moreover, it is a flaw that appeared as well in other parts of the Act….


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. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. Supra, at 6. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

Perhaps, Justice Scalia, it was a ‘slip of the pen’ like Harry Reid’s ‘slip on an exercise machine’?  That would change things, eh?  No Dismal Failure to see here: move along….

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).

The Court’s decision also reflects the philosophy that we, The People, should put out our wrists willingly so that shackles of Enslavement can be locked around them.

Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress “meant [it] to operate.” Ante, at 17. First of all, what makes the Court so sure that Congress “meant” tax credits to be available everywhere? Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges. More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.” Lamie, supra, at 542. In the meantime, this Court “has no roving license. . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.” Bay Mills, 572 U. S., at ___ (slip op., at 11).

Oh, come on now, Justice Scalia, get with the program [or should I say: ‘Five-Year Plan’?]: The Rule Of Law is no longer operable — after all, it was those nasty, smelly Dead White Males who advocated for it and forced it on us all, thus denying us the Immanentizing Of The Eschaton.

Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act “does not reflect the type of care and deliberation that one might expect of such significant legislation.” Ante, at 14–15. It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

Especially a people that are armed.

…The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.

And all kinds and varieties of vile Corruption.

Just ponder the significance of the Court’s decision to take matters into its own hands. The Court’s revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act’s individual mandate, whose scope depends in part on the availability of credits. What a parody today’s decision makes of Hamilton’s assurances to the people of New York: “The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961).

Justice Scalia’s summation:

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.

It also means that State Sovereignty only exists when it is favored, needed, useful to, the national government.  In other words: State Sovereignty only abides, it only is tolerated / stomached, it is only permitted to exist, when the whims of those in Power And Control of the national government require it to exist.  Thus, this Decision transforms the Several States into Administrative Units [provinces] of the national government.

Therefore, since all Sovereignty is granted by the Sovereign People, this decision wipes away, destroys, our Authority over all levels of our governments.  We are now the mere Subjects of Tyrants.

If there’s a better reason for us to rise-up and take back what was given to us by Providence, I’ve never seen it.

It is time, I think.

I know not what course others may take, but as for me:
I will not be a slave; I will either Live Free Or Die.

We and our wives and children all will fight
And have our bodies slaughtered by thy foes.

Ay, and the very parings of our nails
Shall pitch a field when we are dead.

Henry VI, Part I, Act III, Scene i



  1. 25 June 2015 @ 23:21 23:21

    Reblogged this on That Mr. G Guy's Blog.

  2. Adobe_Walls permalink
    26 June 2015 @ 21:26 21:26

    Were you aware that there is at least one company in this country manufactures ammunition for RPGs? Trivia or food for thought?

    ”When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

    …..”That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

  3. 27 June 2015 @ 13:33 13:33

    Just found your TCOTS while looking for the best collection of excerpts from Justice Scalia’s dissent. I love everything about your website—starting with the name. God bless Jean Raspail. And may He bless you, too!

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