A Note on Scalia's Dissent in King v. Burwell

Many conservatives find Justice Antonin Scalia's dissent in King v. Burwell more persuasive than Chief Justice John Robert's opinion for the Court. This is even true of at least one conservative writer who argues that the Court's decision was good for the Republicans, because a ruling for the plaintiffs would have meant that Republicans' divisions and inability to agree on an alternative would have become all too plain.

I disagree that Scalia's dissent is convincing or persuasive. I have read both the Court's opinion and Scalia's dissent. For all its bombast, one reason that Scalia's dissent fails to convince is that it makes an assumption that is not supported by any evidence he cites, namely that Congress probably wanted to withhold subsidies to qualifying residents of states that did not set up their own exchange as a way to incentivize them to do so. Never mind that no one was aware of this incentive until some enterprising lawyers who want to see the Affordable Care Act repealed brought this case.

In this connection, Scalia writes:

“…the Affordable Care Act displays a congressional preference for state participation in the establishment of Exchanges: Each State gets the first opportunity to set up its Exchange, 42 U. S. C. §18031(b); States that take up the opportunity receive federal funding for ‘activities . . . related to establishing’ an Exchange, §18031(a)(3); and the Secretary may establish an Exchange in a State only as a fallback, §18041(c). But setting up and running an Exchange involve significant burdens—meeting strict deadlines, §18041(b), implementing requirements related to the offering of insurance plans, §18031(d)(4), setting up outreach programs, §18031(i), and ensuring that the Exchange is self-sustaining by 2015, §18031(d)(5)(A). A State would have much less reason to take on these burdens if its citizens could receive tax credits no matter who establishes its Exchange… So even if making credits available on all Exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the Act.” (pp. 15-16 of Scalia Dissent)

In contrast, Roberts concludes at the end of the Opinion of the Court:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”

Roberts is right. Because of the legislative situation (especially after Scott Brown's win of Senator Kennedy's Senate seat, though Roberts does not mention this), Congress did not carefully vet the language for sloppy drafting, but interpreting the Affordable Care Act the way Scalia does makes a mockery of the law. This case was brought to the Court for blatantly political purposes by lawyers who searched for and found some plaintiffs who did not want to receive health insurance subsidies.