Obamacare Spared Through “Jiggery-Pokery”?

scaliaSupreme CourtI spent most of the day opining in front of the Supreme Court and in studies on the 6-3 ruling in favor of the Obama Administration in King v. Burwell. I will not subject you to more of that analysis. I have previously indicated that I found the opposing view of the Halbig decision against the Administration to be compelling, though I have always viewed this to be a difficult question upon which people of good-faith could disagree. Yet, in both my prior congressional testimony and my columns, I have never accused the Administration of “jiggery-pokery” — largely because I was not sure what jiggery-pokery is. However, Associate Justice Antonin Scalia has written a stinging dissent to King that contains the memorable accusation that the majority was engaging in “interpretive jiggery-pokery.”

Quite fittingly given his prior decision harkening back to the original intent of the Framers, the term originates in the eighteenth century and means a dishonest manipulation or twisting like what we would call a flim-flam today. It can be traced to the Scottish word jouk, meaning to skillfully twist one’s body to avoid a blow like a boxer or fencer. Joukery became a term for underhanded dealing or trickery which led to the association with the word Pawky (from the word pawk or trick) Thus, by the seventeenth century, the first combination of joukery-pawkery were heard and it came into vogue in the 18th Century . . . and now again in the 21st Century.

238 thoughts on “Obamacare Spared Through “Jiggery-Pokery”?”

  1. BFM:

    Please take a look at the following potential orders for bakers:

    1. The owners is a retired Marine and the venue is for the Westboro “Church” to celebrate crashing military funerals.
    2. The owner is gay and it’s for one of the church events where they are going to expound on the sins of homosexuality.
    3. The owners is a Liberal and it’s for Anne Coulter or Sarah Palin.
    4. The owner is a conservative grandmother, and it’s for a strip club event marketed to married men
    5. The owner is Muslim and the event is for a Mohammed cartoon contest. A cartoon of Mohammed must be put on the cake.
    6. The owner has her teenage daughters work the counter, and the customer cusses a lot or makes inappropriate jokes, or places an order for a stag party where they teenage worker would have to draw female lady parts on the cake.
    7. The owner is religious and the event is for atheists or satanists, and the message matches the event.
    8. The owner is Muslim and the event is at a hog slaughterhouse
    9. The owner is a devoted feminist, and the event is for some men’s club with a distressing message on the cake
    10. The owner is black and the event is for some Aryan Nation event or other openly racist person.

    I can think of so many instances where a business owner might just not want to take a job because of personal beliefs. You risk everything you have to own your own business. But you are not a slave to the customer. You should not be forced to create an artistic product against your will.

  2. “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.’ … 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.”

    I agree with Scalia. If the law was written poorly, it is Congress’ job to repeal or amend it, not the Court.

  3. May all those who have voted in favor of the politicians pushing Obamacare be subject to it, themselves, in all its glory.

    Cronies of Obama like the unions get waivers. Why would so many people be getting waivers if the law was so fantastic?

  4. The mass terror over the mere possibility of people losing their subsidies underscores the problem the middle class has with Obamacare.

    It is unaffordable.

    Even its architects admitted that, in writing.

  5. Ralph:

    “Obamacare benefits big government and it benefits the insurance companies big time. That’s what it’s all about—oh, and ripping off the public, of course. That goes without saying. Get it? (Got it.) Good!”

    Yep. I am particularly amused by the pediatric dental coverage now mandated to be added. It was supposed to ensure that more kids got proper dental care. EXCEPT that since it is required to be added to medical insurance, it is subject to the same deductible. I’ve opined before on the 1100% increase in my own deductible, so I won’t go into it more now.

    Suffice it to say that this panacea for children’s dental care means that only children unfortunate enough to have a catastrophic accident or illness or otherwise go through thousands of dollars in deductible actually get their dental procedures covered. Of course, you could buy an additional separate private dental policy, and just consider your mandated dental premiums wasted money. That is, if you have the money to pay double dental premiums.

    The insurance companies must laugh all the way to the bank.

    Once again, Liberals harm the group they are purported to help.

  6. I amused by the questions about how to handle “restrooms” for male or female or trans-gendered. In a couple of countries I’ve lived in, half a world away, there was no confusion even 40+ years ago. They were all marked & designated “Water Closet” or WC…and no one thought anything of it in the larger ones…its a biological function, so what the heck? Urinals? Yep, you just peed in to the same hole in the tile floor as everyone else did no matter the stance. Aim well. 😀

  7. BFM, Business owners refuse to serve people for a myriad of reasons, as DBQ stated. At one time I had 5 PI’s working for me. But, I called the shots. I turned down business for so many reasons I won’t bore you. Some of the main reasons: I was too busy, I didn’t do that type of investigation, I couldn’t get the job done in the timeframe requested, It was too far away,I thought the person was an a-hole. Now, I refused to take cases when I was a sole proprietor, when I had one, then 3, then 4, then 5 PI’s working for me. I like you BFM. But, you are showing a lack of knowledge on how businesses operate.

    BFM, here’s what I am certain has happened and will continue. Let’s take the baker who doesn’t have any problem w/ a gay marriage. He’s not religious, and is a to each their own guy. He has a gay couple come in and ask for a wedding cake. He says, “Sorry, I’m swamped, I can’t do it.” the reply, “DISCRIMINATION!” So, by intimidation or threat of a lawsuit, the baker takes the order but has to tell a hetero couple he has to back out, he’s overbooked. Or, the baker stands his ground on principle. He does not take the order because he’s too busy, gets sued, and has to hire an attorney. When you anoint people w/ special, protected, status there will be horrible injustices. The former prey becomes predatory. And, there will be shysters @ the ready to do the suing.

  8. Annie,
    Homosexuality may not only be something a person is born as.


    “Self-reported childhood sexual abuse was associated with same-sex sexual behavior. Participants who engaged in same-sex sexual behavior and those who identified themselves as homosexual or bisexual perceived more distance between themselves and their fathers than those who did not. Being sexually abused by someone of one’s own sex was related to same-sex sexual orientation in male participants but not in female participants.”

    I wonder to what degree maternal hormones play a role versus childhood abuse. Perhaps same-sex childhood abuse causes epigenetic changes, too.

  9. Lisa, I was a Wisconsin Synod Lutheran for ten years, as a young adult after leaving my childhood church, the Assemblies of God, Sarah Palin’s church. My two oldest children were confirmed in the Lutheran church.

  10. @Annie

    ~~ I went to a Presbyterian church my entire younger life until I left home. My children are baptized Lutheran and went to Lutheran schools. My oldest will be attending the same college that Chris Kyle attended this fall and very proud she chose that university.

  11. The sign in the lower picture in a movie called ‘Giant’, says “We Reserve The Right To Refuse Service To Anyone”, and that should still apply in a country with “real freedoms”, but our freedoms are being taken slowly away, because of the intolerant left. If you don’t agree with their vision, or their ideology, they will force you to with laws and punishment for not complying. It does not apply in Texas, Indiana, Wisconsin and many more whom are passing the Religious Freedom Act/Bill.


  12. Lisa, I attend a wonderful Presbyterian church, occasionally. Of course that religion may not be one that you consider Christian enough. It’s one of those social justice churches that Glenn Beck warns about. What do you think about Presbyterians Lisa?

  13. Paul thanks and kudos.

    The rest of you – keep trying, but may I hazard an observation?
    you did *not* answer the question, but *re-cast* the question to straw men of your own liking. Some recast the question into something horrible, some recast it into something imaginary and one dimensional, some into lifeless feeling-less entities. But there’s a commonality to it, and interesting to me it’s the exact thing you claim was one of the primary sin of your opponents: dehumanization. Keep trying….

  14. My husband is a contractor and he often refuses to take on a job. Sometimes it is because he is just too busy. Other times it is because the scope of the job is beyond the ability of the equipment that we have. For example pulling a 10 hp pump from a 800 ft well on 3 in pipe. Nope. Not gonna happen. It might be the client wants something impossible to provide given the resources that we have to work with. Occasionally it is because the client is just an a-hole and you find a reason to say no thanks and refer them on. I’ve declined clients in my own business for that reason

    A baker could decline to make a desired special order project for similar reasons. Too busy. Takes too long to make the specialty item. The baker doesn’t want to work in fondant. Whatever. The reasons to not take a contract are multitude.

    The laws require that a public accommodation business sell or provide service to all comers. As it should be. However, the First Amendment doesn’t require someone to b@sterdize their religious principles outside of that public accommodation…..or in a private contractual situation.

    Again…..the business owners are not your slaves that you can FORCE them to work for you on specialty jobs. In the donut shop, at the deli….of course…everyone gets served. But otherwise. Go pound sand.

  15. I. Annie
    1, June 26, 2015 at 1:58 pm
    Religious beliefs should not trump civil liberties, Jaques, no matter what religion. Maybe I’m member of the Church of Blondes and we believe red haired people are devils, so should my belief allow me to discriminate against redheads? Simplistic question, simplistic answer.
    Jaques, I answered your question a long time ago.

  16. BFM, You are usually common sense but “businesses don’t have feelings or religious beliefs” is flat ass wrong on many levels. THE OWNERS DO! I’m guessing you’ve never owned a business. Because I have owned a business for 30 years. I had both feelings and religious beliefs and I WAS the business. That attitude you just expressed is going to cause a HUGE backlash, BFM. A HUGE BACKLASH!

    There are MANY reasons the law allows to refuse service to people.

    1. @Nick: ” You are usually common sense but “businesses don’t have feelings or religious beliefs” is flat ass wrong on many levels. THE OWNERS DO! I’m guessing you’ve never owned a business.”

      I am not sure I am convinced. But just for the sake of argument, would it be ok if we let single proprietorships off the hook and made all other for profit businesses serve any customer who walked through the door?

      Is there a dividing line we can agree on, maybe based on business form or number of employees, where smaller businesses or simpler proprietorships are exempt because, presumably, the owners are more involved with day to day operations. But larger more complicated businesses, say corporations, have to serve everyone?

      Does the business format matter. Does it make a difference if you have a store front where, presumably, anyone can walk in, or an office where potential customers usually have an appointment?

      Does it matter if the business has a schedule of standard prices – can’t anyone buy from the schedule? Or does it matter if the product has to be negotiated every time?

      It seems to me that if the business has a store front with posted prices then anyone can walk in and buy the products offered for sale. What is wrong with that?

      1. bfm – the courts have decided that there are some things that you can decide NOT to put on a cake.

        Have you ever watched Cake Boss on the Food Network? They did an erotic cake for a bachelor party. Mama got very very mad. She said they did not do those kind of cakes. If push came to shove I think she is deeply Catholic. Where would this fit under the decision to bake a cake for a same-sex wedding?

        1. “Have you ever watched Cake Boss on the Food Network? They did an erotic cake for a bachelor party. Mama got very very mad. She said they did not do those kind of cakes. If push came to shove I think she is deeply Catholic. Where would this fit under the decision to bake a cake for a same-sex wedding?”

          That is an interesting question. But it seems to me the answer depends on what is considered obscene in ordinary conversation rather than the religious values of the baker.

          As a first cut, I would guess if there is a question about whether a speaker could utter similar verbal remarks in public, then the baker would have a basis to argue that there was no justification to order him to place the words or image on a cake.

          BTW, just for clarification, there is nothing inherently obscene about admitting to being homosexual or being a same sex couple.

          1. bfm – if it helps any, my standards are broad, but even I found the cake to border on obscene. Mama was sure it was obscene. 🙂 It was not the wording but the decoration (take that in the broadest sense).

            1. @Paul C. Schulte: ” It was not the wording but the decoration (take that in the broadest sense).”

              How can I put this delicately? It sounds as though mama knows a picture of one when she sees one.

              All I can say is that if the image might attract unfavorable, or legal, attention if placed in the window or display case of the business, that alone would seem to be a pretty good argument the business does not have to accept the order for the product. The last I heard there are still limitations on public displays of some body parts and some words.

              If the state places limitations on what can be displayed to the general public then business owners, operators and employees are entitled to the same protection – they are after all a part of the general public.

              Of course that formulation does not offer a solution for individuals who want to decline business that does not rise to the level of obscenity.

  17. Is the baker in business for profit? Are we are talking about providing a product or service as a profit making business? Then of course the business serves all customers and bakes the cake for anybody including for a homosexual ceremony.

    There is a world of difference between being just a bakery that makes generic donuts, chocolate eclairs, banana cream pies, coconut cakes that are sold to everyone who walks in the door. This is what a bakery does. This is what a sandwich shop does. This is what a pizza parlor does.

    The difference comes when the baker is asked to make a contract for a special designed, on off cake that is in reality a work of art. (YOU try making a 4 tiered wedding cake with marzipan, hand made fondants and hand formed roses and other flowers and decorations….I dare you. It takes years and years of practice to be able to create…not just bake….CREATE a work of art wedding cake).

    The baker is in a contract situation in this case, not a general selling donuts type of transaction. When you are a contractor you are not required to accept every contract. You either bid on the job or provide an estimate to which BOTH parties agree. The baker is not your slave to be forced make you a special personalized cake or anything else at your demand. It is a contractual situation.

    If you don’t understand the difference, then you are really quite hopeless.

  18. The vast majority of people disapproves of homosexuality.

    Homosexuality loses every time people vote on it.

    The government has been taken over by radicals.

    Homosexuality wins in court.

    Judges legislate from the bench.

    It’s executive overreach with an exponent.

    The judicial branch has taken over America.


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