I’m not going to waste time remarking on the Supreme Court’s King v. Burwell decisions except to say that the left’s rejoicing will end the moment someone uses the gymnastics required to reach that decision to an end they do not either enjoy or embrace.
Besides, Justice Scalia already did the heavy lifting. Anything else would be inferior by comparison. Here’s a taste…(H/T The Federalist)
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.
Read the entire decision here. I have published Scalia’s dissent on the jump.
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 14–114
DAVID KING, ET AL., PETITIONERS v. SYLVIA
BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 25, 2015]
JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
The Court holds that when the Patient Protection and
Affordable Care Act says “Exchange established by the
State” it means “Exchange established by the State or the
Federal Government.” That is of course quite absurd, and
the Court’s 21 pages of explanation make it no less so.
I
The Patient Protection and Affordable Care Act makes
major reforms to the American health-insurance market.
It provides, among other things, that every State “shall . . .
establish an American Health Benefit Exchange”—a
marketplace where people can shop for health-insurance
plans. 42 U. S. C. §18031(b)(1). And it provides that if a
State does not comply with this instruction, the Secretary
of Health and Human Services must “establish and operate
such Exchange within the State.” §18041(c)(1).
A separate part of the Act—housed in §36B of the Internal
Revenue Code—grants “premium tax credits” to subsidize
certain purchases of health insurance made on Exchanges.
The tax credit consists of “premium assistance
amounts” for “coverage months.” 26 U. S. C. §36B(b)(1).
An individual has a coverage month only when he is cov-
2 KING v. BURWELL
SCALIA, J., dissenting
ered by an insurance plan “that was enrolled in through
an Exchange established by the State under [§18031].”
§36B(c)(2)(A). And the law ties the size of the premium
assistance amount to the premiums for health plans which
cover the individual “and which were enrolled in through
an Exchange established by the State under [§18031].”
§36B(b)(2)(A). The premium assistance amount further
depends on the cost of certain other insurance plans “offered
through the same Exchange.” §36B(b)(3)(B)(i).
This case requires us to decide whether someone who
buys insurance on an Exchange established by the Secretary
gets tax credits. You would think the answer would
be obvious—so obvious there would hardly be a need for
the Supreme Court to hear a case about it. In order to
receive any money under §36B, an individual must enroll
in an insurance plan through an “Exchange established by
the State.” The Secretary of Health and Human Services
is not a State. So an Exchange established by the Secretary
is not an Exchange established by the State—which
means people who buy health insurance through such an
Exchange get no money under §36B.
Words no longer have meaning if an Exchange that is
not established by a State is “established by the State.” It
is hard to come up with a clearer way to limit tax credits
to state Exchanges than to use the words “established by
the State.” And it is hard to come up with a reason to
include the words “by the State” other than the purpose of
limiting credits to state Exchanges. “[T]he plain, obvious,
and rational meaning of a statute is always to be preferred
to any curious, narrow, hidden sense that nothing but the
exigency of a hard case and the ingenuity and study of an
acute and powerful intellect would discover.” Lynch v.
Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal
quotation marks omitted). Under all the usual rules of
interpretation, in short, the Government should lose this
case. But normal rules of interpretation seem always to
Cite as: 576 U. S. ____ (2015) 3
SCALIA, J., dissenting
yield to the overriding principle of the present Court: The
Affordable Care Act must be saved.
II
The Court interprets §36B to award tax credits on both
federal and state Exchanges. It accepts that the “most
natural sense” of the phrase “Exchange established by the
State” is an Exchange established by a State. Ante, at 11.
(Understatement, thy name is an opinion on the Affordable
Care Act!) Yet the opinion continues, with no semblance
of shame, that “it is also possible that the phrase
refers to all Exchanges—both State and Federal.” Ante, at
13. (Impossible possibility, thy name is an opinion on the
Affordable Care Act!) The Court claims that “the context
and structure of the Act compel [it] to depart from what
would otherwise be the most natural reading of the pertinent
statutory phrase.” Ante, at 21.
I wholeheartedly agree with the Court that sound interpretation
requires paying attention to the whole law, not
homing in on isolated words or even isolated sections.
Context always matters. Let us not forget, however, why
context matters: It is a tool for understanding the terms of
the law, not an excuse for rewriting them.
Any effort to understand rather than to rewrite a law
must accept and apply the presumption that lawmakers
use words in “their natural and ordinary signification.”
Pensacola Telegraph Co. v. Western Union Telegraph Co.,
96 U. S. 1, 12 (1878). Ordinary connotation does not
always prevail, but the more unnatural the proposed
interpretation of a law, the more compelling the contextual
evidence must be to show that it is correct. Today’s
interpretation is not merely unnatural; it is unheard of.
Who would ever have dreamt that “Exchange established
by the State” means “Exchange established by the State or
the Federal Government”? Little short of an express statutory
definition could justify adopting this singular reading.
4 KING v. BURWELL
SCALIA, J., dissenting
Yet the only pertinent definition here provides that “State”
means “each of the 50 States and the District of Columbia.”
42 U. S. C. §18024(d). Because the Secretary is
neither one of the 50 States nor the District of Columbia,
that definition positively contradicts the eccentric theory
that an Exchange established by the Secretary has been
established by the State.
Far from offering the overwhelming evidence of meaning
needed to justify the Court’s interpretation, other contextual
clues undermine it at every turn. To begin with,
other parts of the Act sharply distinguish between the
establishment of an Exchange by a State and the establishment
of an Exchange by the Federal Government. The
States’ authority to set up Exchanges comes from one
provision, §18031(b); the Secretary’s authority comes from
an entirely different provision, §18041(c). Funding for
States to establish Exchanges comes from one part of the
law, §18031(a); funding for the Secretary to establish
Exchanges comes from an entirely different part of the
law, §18121. States generally run state-created Exchanges;
the Secretary generally runs federally created
Exchanges. §18041(b)–(c). And the Secretary’s authority
to set up an Exchange in a State depends upon the State’s
“[f]ailure to establish [an] Exchange.” §18041(c) (emphasis
added). Provisions such as these destroy any pretense
that a federal Exchange is in some sense also established
by a State.
Reading the rest of the Act also confirms that, as relevant
here, there are only two ways to set up an Exchange
in a State: establishment by a State and establishment by
the Secretary. §§18031(b), 18041(c). So saying that an
Exchange established by the Federal Government is “established
by the State” goes beyond giving words bizarre
meanings; it leaves the limiting phrase “by the State” with
no operative effect at all. That is a stark violation of the
elementary principle that requires an interpreter “to give
Cite as: 576 U. S. ____ (2015) 5
SCALIA, J., dissenting
effect, if possible, to every clause and word of a statute.”
Montclair v. Ramsdell, 107 U. S. 147, 152 (1883). In
weighing this argument, it is well to remember the difference
between giving a term a meaning that duplicates
another part of the law, and giving a term no meaning at
all. Lawmakers sometimes repeat themselves—whether
out of a desire to add emphasis, a sense of belt-andsuspenders
caution, or a lawyerly penchant for doublets
(aid and abet, cease and desist, null and void). Lawmakers
do not, however, tend to use terms that “have no operation
at all.” Marbury v. Madison, 1 Cranch 137, 174
(1803). So while the rule against treating a term as a
redundancy is far from categorical, the rule against treating
it as a nullity is as close to absolute as interpretive
principles get. The Court’s reading does not merely give
“by the State” a duplicative effect; it causes the phrase to
have no effect whatever.
Making matters worse, the reader of the whole Act will
come across a number of provisions beyond §36B that refer
to the establishment of Exchanges by States. Adopting
the Court’s interpretation means nullifying the term “by
the State” not just once, but again and again throughout
the Act. Consider for the moment only those parts of the
Act that mention an “Exchange established by the State”
in connection with tax credits:
? The formula for calculating the amount of the tax
credit, as already explained, twice mentions “an Exchange
established by the State.” 26 U. S. C.
§36B(b)(2)(A), (c)(2)(A)(i).
? The Act directs States to screen children for eligibility
for “[tax credits] under section 36B” and for “any
other assistance or subsidies available for coverage obtained
through” an “Exchange established by the
State.” 42 U. S. C. §1396w–3(b)(1)(B)–(C).
? The Act requires “an Exchange established by the
6 KING v. BURWELL
SCALIA, J., dissenting
State” to use a “secure electronic interface” to determine
eligibility for (among other things) tax credits.
§1396w–3(b)(1)(D).
? The Act authorizes “an Exchange established by the
State” to make arrangements under which other state
agencies “determine whether a State resident is eligible
for [tax credits] under section 36B.” §1396w–
3(b)(2).
? The Act directs States to operate Web sites that allow
anyone “who is eligible to receive [tax credits] under
section 36B” to compare insurance plans offered
through “an Exchange established by the State.”
§1396w–3(b)(4).
? One of the Act’s provisions addresses the enrollment
of certain children in health plans “offered through an
Exchange established by the State” and then discusses
the eligibility of these children for tax credits.
§1397ee(d)(3)(B).
It is bad enough for a court to cross out “by the State”
once. But seven times?
Congress did not, by the way, repeat “Exchange established
by the State under [§18031]” by rote throughout the
Act. Quite the contrary, clause after clause of the law uses
a more general term such as “Exchange” or “Exchange
established under [§18031].” See, e.g., 42 U. S. C.
§§18031(k), 18033; 26 U. S. C. §6055. It is common sense
that any speaker who says “Exchange” some of the time,
but “Exchange established by the State” the rest of the
time, probably means something by the contrast.
Equating establishment “by the State” with establishment
by the Federal Government makes nonsense of other
parts of the Act. The Act requires States to ensure (on
pain of losing Medicaid funding) that any “Exchange
established by the State” uses a “secure electronic inter-
Cite as: 576 U. S. ____ (2015) 7
SCALIA, J., dissenting
face” to determine an individual’s eligibility for various
benefits (including tax credits). 42 U. S. C. §1396w–
3(b)(1)(D). How could a State control the type of electronic
interface used by a federal Exchange? The Act allows a
State to control contracting decisions made by “an Exchange
established by the State.” §18031(f)(3). Why
would a State get to control the contracting decisions of a
federal Exchange? The Act also provides “Assistance to
States to establish American Health Benefit Exchanges”
and directs the Secretary to renew this funding “if the
State . . . is making progress . . . toward . . . establishing
an Exchange.” §18031(a). Does a State that refuses to set
up an Exchange still receive this funding, on the premise
that Exchanges established by the Federal Government
are really established by States? It is presumably in order
to avoid these questions that the Court concludes that
federal Exchanges count as state Exchanges only “for
purposes of the tax credits.” Ante, at 13. (Contrivance,
thy name is an opinion on the Affordable Care Act!)
It is probably piling on to add that the Congress that
wrote the Affordable Care Act knew how to equate two
different types of Exchanges when it wanted to do so. The
Act includes a clause providing that “[a] territory that . . .
establishes . . . an Exchange . . . shall be treated as a
State” for certain purposes. §18043(a) (emphasis added).
Tellingly, it does not include a comparable clause providing
that the Secretary shall be treated as a State for purposes
of §36B when she establishes an Exchange.
Faced with overwhelming confirmation that “Exchange
established by the State” means what it looks like it
means, the Court comes up with argument after feeble
argument to support its contrary interpretation. None of
its tries comes close to establishing the implausible conclusion
that Congress used “by the State” to mean “by the
State or not by the State.”
The Court emphasizes that if a State does not set up an
8 KING v. BURWELL
SCALIA, J., dissenting
Exchange, the Secretary must establish “such Exchange.”
§18041(c). It claims that the word “such” implies that
federal and state Exchanges are “the same.” Ante, at 13.
To see the error in this reasoning, one need only consider a
parallel provision from our Constitution: “The Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by
Law make or alter such Regulations.” Art. I, §4, cl. 1
(emphasis added). Just as the Affordable Care Act directs
States to establish Exchanges while allowing the Secretary
to establish “such Exchange” as a fallback, the Elections
Clause directs state legislatures to prescribe election
regulations while allowing Congress to make “such Regulations”
as a fallback. Would anybody refer to an election
regulation made by Congress as a “regulation prescribed
by the state legislature”? Would anybody say that a federal
election law and a state election law are in all respects
equivalent? Of course not. The word “such” does
not help the Court one whit. The Court’s argument also
overlooks the rudimentary principle that a specific provision
governs a general one. Even if it were true that the
term “such Exchange” in §18041(c) implies that federal
and state Exchanges are the same in general, the term
“established by the State” in §36B makes plain that they
differ when it comes to tax credits in particular.
The Court’s next bit of interpretive jiggery-pokery involves
other parts of the Act that purportedly presuppose
the availability of tax credits on both federal and state
Exchanges. Ante, at 13–14. It is curious that the Court is
willing to subordinate the express words of the section
that grants tax credits to the mere implications of other
provisions with only tangential connections to tax credits.
One would think that interpretation would work the other
way around. In any event, each of the provisions mentioned
by the Court is perfectly consistent with limiting
Cite as: 576 U. S. ____ (2015) 9
SCALIA, J., dissenting
tax credits to state Exchanges. One of them says that the
minimum functions of an Exchange include (alongside
several tasks that have nothing to do with tax credits)
setting up an electronic calculator that shows “the actual
cost of coverage after the application of any premium tax
credit.” 42 U. S. C. §18031(d)(4)(G). What stops a federal
Exchange’s electronic calculator from telling a customer
that his tax credit is zero? Another provision requires an
Exchange’s outreach program to educate the public about
health plans, to facilitate enrollment, and to “distribute
fair and impartial information” about enrollment and “the
availability of premium tax credits.” §18031(i)(3)(B).
What stops a federal Exchange’s outreach program from
fairly and impartially telling customers that no tax credits
are available? A third provision requires an Exchange to
report information about each insurance plan sold—
including level of coverage, premium, name of the insured,
and “amount of any advance payment” of the tax credit.
26 U. S. C. §36B(f)(3). What stops a federal Exchange’s
report from confirming that no tax credits have been paid
out?
The Court persists that these provisions “would make
little sense” if no tax credits were available on federal
Exchanges. Ante, at 14. Even if that observation were
true, it would show only oddity, not ambiguity. Laws
often include unusual or mismatched provisions. The
Affordable Care Act spans 900 pages; it would be amazing
if its provisions all lined up perfectly with each other.
This Court “does not revise legislation . . . just because the
text as written creates an apparent anomaly.” Michigan
v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014)
(slip op., at 10). At any rate, the provisions cited by the
Court are not particularly unusual. Each requires an
Exchange to perform a standardized series of tasks, some
aspects of which relate in some way to tax credits. It is
entirely natural for slight mismatches to occur when, as
10 KING v. BURWELL
SCALIA, J., dissenting
here, lawmakers draft “a single statutory provision” to
cover “different kinds” of situations. Robers v. United
States, 572 U. S. ___, ___ (2014) (slip op., at 4). Lawmakers
need not, and often do not, “write extra language
specifically exempting, phrase by phrase, applications in
respect to which a portion of a phrase is not needed.” Ibid.
Roaming even farther afield from §36B, the Court turns
to the Act’s provisions about “qualified individuals.” Ante,
at 10–11. Qualified individuals receive favored treatment
on Exchanges, although customers who are not qualified
individuals may also shop there. See Halbig v. Burwell,
758 F. 3d 390, 404–405 (CADC 2014). The Court claims
that the Act must equate federal and state establishment
of Exchanges when it defines a qualified individual as
someone who (among other things) lives in the “State that
established the Exchange,” 42 U. S. C. §18032(f)(1)(A).
Otherwise, the Court says, there would be no qualified
individuals on federal Exchanges, contradicting (for example)
the provision requiring every Exchange to take
the “‘interests of qualified individuals’” into account
when selecting health plans. Ante, at 11 (quoting
§18031(e)(1)(b)). Pure applesauce. Imagine that a university
sends around a bulletin reminding every professor to
take the “interests of graduate students” into account
when setting office hours, but that some professors teach
only undergraduates. Would anybody reason that the
bulletin implicitly presupposes that every professor has
“graduate students,” so that “graduate students” must
really mean “graduate or undergraduate students”? Surely
not. Just as one naturally reads instructions about
graduate students to be inapplicable to the extent a particular
professor has no such students, so too would one
naturally read instructions about qualified individuals to
be inapplicable to the extent a particular Exchange has no
such individuals. There is no need to rewrite the term
“State that established the Exchange” in the definition of
Cite as: 576 U. S. ____ (2015) 11
SCALIA, J., dissenting
“qualified individual,” much less a need to rewrite the
separate term “Exchange established by the State” in a
separate part of the Act.
Least convincing of all, however, is the Court’s attempt
to uncover support for its interpretation in “the structure
of Section 36B itself.” Ante, at 19. The Court finds it
strange that Congress limited the tax credit to state Exchanges
in the formula for calculating the amount of the
credit, rather than in the provision defining the range of
taxpayers eligible for the credit. Had the Court bothered
to look at the rest of the Tax Code, it would have seen that
the structure it finds strange is in fact quite common.
Consider, for example, the many provisions that initially
make taxpayers of all incomes eligible for a tax credit, only
to provide later that the amount of the credit is zero if the
taxpayer’s income exceeds a specified threshold. See, e.g.,
26 U. S. C. §24 (child tax credit); §32 (earned-income tax
credit); §36 (first-time-homebuyer tax credit). Or consider,
for an even closer parallel, a neighboring provision that
initially makes taxpayers of all States eligible for a credit,
only to provide later that the amount of the credit may be
zero if the taxpayer’s State does not satisfy certain requirements.
See §35 (health-insurance-costs tax credit).
One begins to get the sense that the Court’s insistence on
reading things in context applies to “established by the
State,” but to nothing else.
For what it is worth, lawmakers usually draft tax-credit
provisions the way they do—i.e., the way they drafted
§36B—because the mechanics of the credit require it.
Many Americans move to new States in the middle of the
year. Mentioning state Exchanges in the definition of
“coverage month”—rather than (as the Court proposes) in
the provisions concerning taxpayers’ eligibility for the
credit—accounts for taxpayers who live in a State with a
state Exchange for a part of the year, but a State with a
federal Exchange for the rest of the year. In addition,
12 KING v. BURWELL
SCALIA, J., dissenting
§36B awards a credit with respect to insurance plans
“which cover the taxpayer, the taxpayer’s spouse, or any
dependent . . . of the taxpayer and which were enrolled in
through an Exchange established by the State.”
§36B(b)(2)(A) (emphasis added). If Congress had mentioned
state Exchanges in the provisions discussing taxpayers’
eligibility for the credit, a taxpayer who buys
insurance from a federal Exchange would get no money,
even if he has a spouse or dependent who buys insurance
from a state Exchange—say a child attending college in a
different State. It thus makes perfect sense for “Exchange
established by the State” to appear where it does, rather
than where the Court suggests. Even if that were not so,
of course, its location would not make it any less clear.
The Court has not come close to presenting the compelling
contextual case necessary to justify departing from
the ordinary meaning of the terms of the law. Quite the
contrary, context only underscores the outlandishness of
the Court’s interpretation. Reading the Act as a whole
leaves no doubt about the matter: “Exchange established
by the State” means what it looks like it means.
III
For its next defense of the indefensible, the Court turns
to the Affordable Care Act’s design and purposes. As
relevant here, the Act makes three major reforms. The
guaranteed-issue and community-rating requirements
prohibit insurers from considering a customer’s health
when deciding whether to sell insurance and how much to
charge, 42 U. S. C. §§300gg, 300gg–1; its famous individual
mandate requires everyone to maintain insurance
coverage or to pay what the Act calls a “penalty,” 26
U. S. C. §5000A(b)(1), and what we have nonetheless
called a tax, see National Federation of Independent Business
v. Sebelius, 567 U. S. ___, ___ (2012) (slip op., at 39);
and its tax credits help make insurance more affordable.
Cite as: 576 U. S. ____ (2015) 13
SCALIA, J., dissenting
The Court reasons that Congress intended these three
reforms to “work together to expand insurance coverage”;
and because the first two apply in every State, so must the
third. Ante, at 16.
This reasoning suffers from no shortage of flaws. To
begin with, “even the most formidable argument concerning
the statute’s purposes could not overcome the clarity
[of] the statute’s text.” Kloeckner v. Solis, 568 U. S. ___,
___, n. 4 (2012) (slip op., at 14, n. 4). Statutory design and
purpose matter only to the extent they help clarify an
otherwise ambiguous provision. Could anyone maintain
with a straight face that §36B is unclear? To mention just
the highlights, the Court’s interpretation clashes with a
statutory definition, renders words inoperative in at least
seven separate provisions of the Act, overlooks the contrast
between provisions that say “Exchange” and those
that say “Exchange established by the State,” gives the
same phrase one meaning for purposes of tax credits but
an entirely different meaning for other purposes, and (let
us not forget) contradicts the ordinary meaning of the
words Congress used. On the other side of the ledger, the
Court has come up with nothing more than a general
provision that turns out to be controlled by a specific one,
a handful of clauses that are consistent with either understanding
of establishment by the State, and a resemblance
between the tax-credit provision and the rest of the Tax
Code. If that is all it takes to make something ambiguous,
everything is ambiguous.
Having gone wrong in consulting statutory purpose at
all, the Court goes wrong again in analyzing it. The purposes
of a law must be “collected chiefly from its words,”
not “from extrinsic circumstances.” Sturges v. Crowninshield,
4 Wheat. 122, 202 (1819) (Marshall, C. J.). Only
by concentrating on the law’s terms can a judge hope to
uncover the scheme of the statute, rather than some other
scheme that the judge thinks desirable. Like it or not, the
14 KING v. BURWELL
SCALIA, J., dissenting
express terms of the Affordable Care Act make only two of
the three reforms mentioned by the Court applicable in
States that do not establish Exchanges. It is perfectly
possible for them to operate independently of tax credits.
The guaranteed-issue and community-rating requirements
continue to ensure that insurance companies treat all
customers the same no matter their health, and the individual
mandate continues to encourage people to maintain
coverage, lest they be “taxed.”
The Court protests that without the tax credits, the
number of people covered by the individual mandate
shrinks, and without a broadly applicable individual
mandate the guaranteed-issue and community-rating
requirements “would destabilize the individual insurance
market.” Ante, at 15. If true, these projections would
show only that the statutory scheme contains a flaw; they
would not show that the statute means the opposite of
what it says. Moreover, it is a flaw that appeared as well
in other parts of the Act. A different title established a
long-term-care insurance program with guaranteed-issue
and community-rating requirements, but without an
individual mandate or subsidies. §§8001–8002, 124 Stat.
828–847 (2010). This program never came into effect “only
because Congress, in response to actuarial analyses predicting
that the [program] would be fiscally unsustainable,
repealed the provision in 2013.” Halbig, 758 F. 3d, at 410.
How could the Court say that Congress would never
dream of combining guaranteed-issue and communityrating
requirements with a narrow individual mandate,
when it combined those requirements with no individual
mandate in the context of long-term-care insurance?
Similarly, the Department of Health and Human Services
originally interpreted the Act to impose guaranteedissue
and community-rating requirements in the Federal
Territories, even though the Act plainly does not make the
individual mandate applicable there. Ibid.; see 26 U. S. C.
Cite as: 576 U. S. ____ (2015) 15
SCALIA, J., dissenting
§5000A(f)(4); 42 U. S. C. §201(f). “This combination, predictably,
[threw] individual insurance markets in the
territories into turmoil.” Halbig, supra, at 410. Responding
to complaints from the Territories, the Department at
first insisted that it had “no statutory authority” to address
the problem and suggested that the Territories “seek
legislative relief from Congress” instead. Letter from G.
Cohen, Director of the Center for Consumer Information
and Insurance Oversight, to S. Igisomar, Secretary of
Commerce of the Commonwealth of Northern Mariana
Islands (July 12, 2013). The Department changed its
mind a year later, after what it described as “a careful
review of [the] situation and the relevant statutory language.”
Letter from M. Tavenner, Administrator of the
Centers for Medicare and Medicaid Services, to G. Francis,
Insurance Commissioner of the Virgin Islands (July 16,
2014). How could the Court pronounce it “implausible” for
Congress to have tolerated instability in insurance markets
in States with federal Exchanges, ante, at 17, when
even the Government maintained until recently that
Congress did exactly that in American Samoa, Guam, the
Northern Mariana Islands, Puerto Rico, and the Virgin
Islands?
Compounding its errors, the Court forgets that it is no
more appropriate to consider one of a statute’s purposes in
isolation than it is to consider one of its words that way.
No law pursues just one purpose at all costs, and no statutory
scheme encompasses just one element. Most relevant
here, 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
16 KING v. BURWELL
SCALIA, J., dissenting
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. (Now that the Internal Revenue
Service has interpreted §36B to authorize tax credits
everywhere, by the way, 34 States have failed to set up
their own Exchanges. Ante, at 6.) 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. This is what justifies going out of our way to read
“established by the State” to mean “established by the
State or not established by the State”?
Worst of all for the repute of today’s decision, the
Court’s reasoning is largely self-defeating. The Court
predicts that making tax credits unavailable in States that
do not set up their own Exchanges would cause disastrous
economic consequences there. If that is so, however,
wouldn’t one expect States to react by setting up their own
Exchanges? And wouldn’t that outcome satisfy two of the
Act’s goals rather than just one: enabling the Act’s reforms
to work and promoting state involvement in the Act’s
implementation? The Court protests that the very existence
of a federal fallback shows that Congress expected
that some States might fail to set up their own Exchanges.
Ante, at 19. So it does. It does not show, however, that
Congress expected the number of recalcitrant States to be
particularly large. The more accurate the Court’s dire
economic predictions, the smaller that number is likely to
be. That reality destroys the Court’s pretense that applying
the law as written would imperil “the viability of the
entire Affordable Care Act.” Ante, at 20. All in all, the
Cite as: 576 U. S. ____ (2015) 17
SCALIA, J., dissenting
Court’s arguments about the law’s purpose and design are
no more convincing than its arguments about context.
IV
Perhaps sensing the dismal failure of its efforts to show
that “established by the State” means “established by the
State or the Federal Government,” the Court tries to palm
off the pertinent statutory phrase as “inartful drafting.”
Ante, at 14. This Court, however, has no free-floating
power “to rescue Congress from its drafting errors.”
Lamie v. United States Trustee, 540 U. S. 526, 542 (2004)
(internal quotation marks omitted). Only when it is patently
obvious to a reasonable reader that a drafting mistake
has occurred may a court correct the mistake. The
occurrence of a misprint may be apparent from the face of
the law, as it is where the Affordable Care Act “creates
three separate Section 1563s.” Ante, at 14. But the Court
does not pretend that there is any such indication of a
drafting error on the face of §36B. The occurrence of a
misprint may also be apparent because a provision decrees
an absurd result—a consequence “so monstrous, that all
mankind would, without hesitation, unite in rejecting the
application.” Sturges, 4 Wheat., at 203. But §36B does
not come remotely close to satisfying that demanding
standard. 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.
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. What are
the odds, do you think, that the same slip of the pen occurred
in seven separate places? No provision of the Act—
none at all—contradicts the limitation of tax credits to
state Exchanges. And as I have already explained, uses of
18 KING v. BURWELL
SCALIA, J., dissenting
the term “Exchange established by the State” beyond the
context of tax credits look anything but accidental. Supra,
at 6. If there was a mistake here, context suggests it was
a substantive mistake in designing this part of the law,
not a technical mistake in transcribing it.
V
The Court’s decision reflects the philosophy that judges
should endure whatever interpretive distortions it takes in
order to correct a supposed flaw in the statutory machinery.
That philosophy ignores the American people’s decision
to give Congress “[a]ll legislative Powers” enumerated
in the Constitution. Art. I, §1. They made Congress, not
this Court, responsible for both making laws and mending
them. This Court holds only the judicial power—the
power to pronounce the law as Congress has enacted it.
We lack the prerogative to repair laws that do not work
out in practice, just as the people lack the ability to throw
us out of office if they dislike the solutions we concoct. We
must always remember, therefore, that “[o]ur task is to
apply the text, not to improve upon it.” Pavelic & LeFlore
v. Marvel Entertainment Group, Div. of Cadence Industries
Corp., 493 U. S. 120, 126 (1989).
Trying to make its judge-empowering approach seem
respectful of congressional authority, the Court asserts
that its decision merely ensures that the Affordable Care
Act operates the way Congress “meant [it] to operate.”
Ante, at 17. First of all, what makes the Court so sure
that Congress “meant” tax credits to be available everywhere?
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. More importantly, the Court forgets that ours
is a government of laws and not of men. That means we
are governed by the terms of our laws, not by the unenacted
will of our lawmakers. “If Congress enacted into law
Cite as: 576 U. S. ____ (2015) 19
SCALIA, J., dissenting
something different from what it intended, then it should
amend the statute to conform to its intent.” Lamie, supra,
at 542. In the meantime, this Court “has no roving license
. . . to disregard clear language simply on the view that . . .
Congress ‘must have intended’ something broader.” Bay
Mills, 572 U. S., at ___ (slip op., at 11).
Even less defensible, if possible, is the Court’s claim
that its interpretive approach is justified because this Act
“does not reflect the type of care and deliberation that one
might expect of such significant legislation.” Ante, at 14–
15. It is not our place to judge the quality of the care and
deliberation that went into this or any other law. A law
enacted by voice vote with no deliberation whatever is
fully as binding upon us as one enacted after years of
study, months of committee hearings, and weeks of debate.
Much less is it our place to make everything come
out right when Congress does not do its job properly. It is
up to Congress to design its laws with care, and it is up to
the people to hold them to account if they fail to carry out
that responsibility.
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
20 KING v. BURWELL
SCALIA, J., dissenting
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
Cite as: 576 U. S. ____ (2015) 21
SCALIA, J., dissenting
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.
