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Supreme Court duct tape

June 26, 2015

Peter Suderman writes at Reason’s blog (my emphasis below).

In Upholding Obamacare’s Subsidies, Justice Roberts Rewrites the Law—Again
Time to start calling the Affordable Care Act SCOTUScare.

Supreme Court Chief Justice John Roberts has rewritten the law to save Obamacare—again. […]

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he writes. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

And so Roberts decided that a law which explicitly and repeatedly states that subsidies are limited to exchanges “established by a State,” and which defines “State” as one of the 50 states or the District of Columbia, actually allows subsidies in exchanges established by a State or the federal government. Roberts’ decision does not interpret Obamacare; it adds to it and reworks it, and in the process transforms it into something that it is not. […]

As Justice Antonin Scalia writes in a scathing dissent, Roberts presumes, with no definitive evidence, that his interpretation is the one that Congress intended. “What makes the Court so sure that Congress ‘meant’ tax credits to be available everywhere?” Scalia asks. “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.” […]

As even Roberts admits in his opinion, the law “contains more than a few examples of inartful drafting” and generally “does not reflect the type of care and deliberation that one might expect of such significant legislation.” It is a shoddy, messy piece of legislation, held together, barely, by Supreme Court duct tape.

It looks like we’ll be saddled with the PPACA indefinitely, despite passing it and finding out what’s in it.

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