“It is implausible,” he wrote with some understatement, “that Congress meant the Act to operate in this manner.”
Roberts had kind words for the challengers. Their argument, he wrote, is “strong,” and the Court should be wary when relying “on context and structure in statutory interpretation.” The Act itself, he wrote with even more understatement, “contains more than a few examples of inartful drafting.” He likened its passage to an old cartoon once cited in a law review by the late Justice Felix Frankfurter, “in which a senator tells his colleagues, ‘I admit this bill is too complicated to understand. We’ll just have to pass it to find out what it means.” But he concluded: “We must respect the role of the legislature, and take care not to undo what it has done.” The ACA was passed “to improve health insurance markets, not to destroy them.” And with that, the witch was gone.
But not without a heartfelt eulogy from Justice Antonin Scalia, dissenting for himself and Justices Clarence Thomas and Samuel Alito. The words “established by a state,” he wrote, are the only words that count. “The Secretary of Health and Human Services is not a state. So an Exchange established by the Secretary is not an Exchange established by a state—which means people who buy health insurance through such an Exchange get no money” from tax credits.
Scalia’s dissent is striking for two reasons. Though pointed, it is, like his dissent Monday in Los Angeles v. Patel, more restrained than the usual aria of Scalian outrage. Second, I think, it works against itself, leaving the reader more convinced than before that Roberts has read the statute right.
His first argument, as noted above, was that of a fundamentalist preacher with a proof text: “established by a state” cannot mean anything else. Context is irrelevant; dictionaries are all that matter.
His second is that the Chief’s use of other provisions to justify a more inclusive reading are wrong. But this passage is grotesquely unpersuasive. Roberts pointed out that if federal exchanges are read out of the subsidy provision, this renders absurd provisions instructing the federal government to provide federal-exchange consumers with online calculators of their subsidy; to conduct outreach to federal-exchange customers to tell them about their tax credits; and to provide reports on the number of policies sold and the subsidies provided.
Nonsense, Scalia insisted: “What stops a federal Exchange’s electronic calculator from telling a customer that his tax credit is zero? . . . What stops a federal Exchanges outreach program from fairly and impartially telling customers that no tax credits are available? ... What stops a federal Exchange from confirming that no tax credits have been paid out?”
What stops the Court adopting those ridiculous suggestions? The answer, to me, is the simple refusal of six justices to believe that 2+2=0 just because part of the American conservative movement would really, really, really like that to be the case.