Scalia Says Court Usurped Power of Purse: 'Authorizes IRS To Spend Tens of Billions of Dollars Every Year'

CNSNews

By Terence P. Jeffrey | June 25, 2015 | 2:58 PM EDT

[Ed; pic is of CJ Roberts]

(CNSNews.com) - Justice Antonin Scalia argued in his dissent from the Supreme Court’s 6-3 opinion in King v. Burwell--in which the court ruled that the word "state" in the Obamacare law only means "state" sometimes--that in rewriting the law from the bench the Supreme Court had not only usurped Congress’s legislative authority but more specifically its power of the purse.

“Just ponder the significance of the court’s decision to take matters into its own hands,” Scalia said. “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.”

“What a parody," says Scalia, "today’s decision makes of [Alexander] 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 citizens 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 whatsoever. It may truly be said to have neither the FORCE nor WILL but merely judgment.'"

The Obamacare law specifically says that people can qualify for federal subsidies to purchase health insurance only when they purchase that insurance through a health insurance exchange “established by the state.”

When many states decided not to establish exchanges (at this count it is 34), the IRS wrote a regulation saying that people could also get federal subsidies when they bought health insurance in exchanges established by the federal secretary of Health and Human Services--rather than in exchanges “established by the state” in which they lived.

Scalia pointed out in his dissent, which was joined by Justices Samuel Alito and Clarence Thomas, that the actual language of the law enacted by Congress repeatedly used the term "exchanges established by the state," suggesting the choice of words was not an accident.

“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,” said Scalia.

“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,” said Scalia. “What are the odds, do you think, that the same slip of the pen oc­curred in seven separate places?” he said. “No provision of the Act—none at all—contradicts the limitation of tax credits to state Exchanges.”

Scalia argued that the majority opinion, written by Chief Justice John Roberts, essentially nullified the words “by the state” where they had been placed in the law by Congress.

“It is bad enough for a court to cross out ‘by the State’ once. But seven times?” said Scalia.

In his majority opinion, Roberts argued that the court was compelled to ignore the “most natural reading” of this phrase that Congress had used seven times in one law.

“In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase,” said Roberts.

Scalia countered that what Roberts and the majority of the court had done was “rewrite[] the law to make tax credits available everywhere."

“We should start calling this law SCOTUScare,” said Scalia.

Here is a key excerpt from Scalia’ opinion:

Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges. If Congress values above everything else the Act’s applicability across the country, it could make tax credits available in every Exchange. If it prizes state involvement in the Act’s implementation, it could continue to limit tax credits to state Exchanges while taking other steps to mitigate the economic consequences predicted by the Court. If Congress wants to accommo­date both goals, it could make tax credits available every­where while offering new incentives for States to set up their own Exchanges. And if Congress thinks that the present design of the Act works well enough, it could do nothing. Congress could also do something else altogether, entirely abandoning the structure of the Affordable Care Act. The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.

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).

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.

Thank You Mr Jeffrey, CNS, and an especial Thank You to Justice Scalia.