

Supreme Court Allows Nationwide Health Care Subsidies - jfmercer
http://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html

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chmaynard
What struck me most about this article were the observations about Scalia's
dissent from the bench. It sounds like he made a fool of himself. Is he really
that arrogant and contemptuous of the liberal justices?

~~~
zaroth
It breaks the fundamental notion of separation of powers when the Supreme
Court has to start explicitly rewriting law that the executive branch doesn't
like. I see Scalia's scorn mostly directed at Congress and the Executive than
his fellow justices, but he also has strong convictions about the judiciary
rewriting laws to suit a perceived need, since it is strictly outside their
function.

Any time you read about a major court case striking down a law, or some
statue, you will typically see it accompanied with a very painstaking argument
about how the judiciary cannot and must not simply change or reinterpret what
is perceived to be a "broken" law. They can follow the law as it is written,
or they can strike it down as unconstitutional, but they can never simply say,
"I don't like the effect this law would have here, so I will just ignore it."

This is like a compiler simply ignoring explicit and functional lines of code
because they lead to a crash. It might sound great that the program avoids a
crash, but if the program isn't running it's own code anymore, then what code
is it running?

In this case, the prevailing argument was that the law as written would
destroy so much of what had evolved into regulatory practice so that they
couldn't bear to hold the Executive to its own rules. As you can imagine, this
is a _difficult_ precedent to set because it opens up an impossible hole in
the innermost workings of the system design. I'm not a historian on this
subject so I can't really point to previous examples, but my understanding is
the only "proper" fix here is an act of congress, and Scotus is rightly peeved
to be put in the position where the executive branch is asking them to clear
up a mess like this.

Another way to think of it -- it is congress's fundamental duty to write and
vote on the bills, and executive branch's duty to sign them into law. The
judicial must not and cannot write their own laws, no matter how much another
branch might plead with them to do so in order to get them off the hook of
actually _doing their job_. If the judiciary can rewrite laws that don't suit
the executive, it negates congress by giving the executive and judiciary
branch far too much power. To those who say it was necessary in this case,
just "be careful what you wish for."

~~~
intopieces
>The judicial must not and cannot write their own laws, no matter how much
another branch might plead with them to do so in order to get them off the
hook of actually doing their job.

This is a mischaracterization of the action the court took on this case. The
court did not 'write their own law' \-- they forced the legislature to follow
what was obviously the intent of the law despite "inartful wording."

"John McDonough, who worked on the Health, Education, Labor and Pension
committee during the health reform debate, wrote in an email. 'There is not a
scintilla of evidence that the Democratic lawmakers who designed the law
intended to deny subsidies to any state, regardless of exchange status.'" [0]

Your solution -- forcing Congress to "do their job" and fix this typo of a
mistake -- would come at the cost of the system itself as well as the
healthcare of more than 8m people. Such pedantry is not only unwarranted, but
cruel.

[0][http://www.vox.com/2014/7/23/5927169/halbig-says-congress-
me...](http://www.vox.com/2014/7/23/5927169/halbig-says-congress-meant-to-
limit-subsidies-congress-disagrees)

~~~
ikeboy
[http://www.scotusblog.com/2015/06/symposium-the-magical-
powe...](http://www.scotusblog.com/2015/06/symposium-the-magical-powers-of-
statutory-context/)

>This is the tradeoff explained by Jonathan Gruber, a professor at MIT and an
“architect” of the ACA, who acknowledged that “if you’re a state and you don’t
set up an Exchange, that means your citizens don’t get their tax credits.”

~~~
intopieces
[http://www.newrepublic.com/article/118851/jonathan-gruber-
ha...](http://www.newrepublic.com/article/118851/jonathan-gruber-halbig-says-
quote-exchanges-was-mistake)

'Among those who say they are surprised by the statement is Gruber himself,
whom I was able to reach by phone. "I honestly don’t remember why I said
that," he said, attempting to reconstruct what he might have been thinking at
the time. "I was speaking off-the-cuff. It was just a mistake." As evidence
that it was not indicative of his beliefs, he noted that his projections of
the law's impact have always assumed that all eligible people would get
subsides, even though, he said, he did not assume all states would choose to
run their own marketplaces.'

~~~
ikeboy
He made an awful lot of "mistakes" of that kind.

~~~
intopieces
Yes, the more I read it, the more I think that that the intent of the law
(that is, the intent of the people who wrote it) was for everyone to get
subsidies but that the law was written in a such a way as to basically
blackmail states to get in line and set up their own exchanges. When that did
not happen (that is, when the refusing states banded together and believed
they could sink the legislation by doing so), the IRS interpreted it the way
they saw fit to make the original intent of the law be in effect.

The more I read it, the more it appears that this is an example of the
Democrats having it both ways. The backpedaling sounds like a way of avoiding
saying as much.

