I 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.
We’ll soon see if that “all hail equal rights” extends to the right of conscience.
What I want Congress to do is pass legislation ending free medical care for Congressmen/ women, judges, federal employees, Indian Chiefs. Let them take their earnings and buy medical insurance like the rest of us. No more freebees. That goes for Justice Roberts and the mad hatter (Scalia).
Congratulations to those who believe in equal rights. I know, I know marriage will never be the same! All the homosexuals will now roam the streets and grab up heterosexual peopled once them into marriage. The world will stop rotating and we will all fly off. Or maybe soon Jesus will return to rapture up the believers. We progressive nurses and fair minded people of good conscience will remain and know that human decency and respect for others will be reflected in our civil society.
Take a hard look at the health care system in Canada. Oh, I know. There are many who will complain about the delays up there in getting your wrinkles taken off your forehead and whatnot. Take a hard look at the words: Socialized Medical Care. As opposed to ObamaCare. Under ObamaCare the rich get richer– the rich being the doctors, pharmacists, drug companies, hospitals, insurance companies, and veternarians who shoot cats in the head with bows and arrows. Wait, I am off cookie there.
Justice Roberts saved capitalism in one day. The critics need to know from whence they hail.
“Conservative politicians all too often shout without thinking.”
On the other side of the ledger liberal politicians all too often act without thinking. The former crying “you can’t do that!” and the latter stating, “I just did, so there!” Our republic doesn’t suffer from too much shouting, we suffer from action absent of reasonable debate. The losers in all of this are the People that expect both shouting and action to be part of a reasonable debate and not a substitute for it.
Justice Alito wrote in dissent regarding the Same-sex marriage decision: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
I think that says it all in regards to the King decision as well.
The far more important and far-reaching ruling was the original — that the tax that was not a tax is a tax. This was a dispute over text, and not a dispute over constitutional overreach. Those thinking Roberts would switch sides after putting himself out on a limb like he did in the original ruling are guilty of fantasizing. And it was completely predictable that Kennedy would switch his vote here. His problem with Obamacare has always been the tax that was not a tax, and the Court has ruled on that. He’s often the swing vote. Why would you think he would rule the same way here as he had on the original?
And what would have happened if the Court had ruled otherwise? Obamacare would still exist, but now many people would not get subsidies, while others in the same financial situation would. Liberals would be giddy watching conservatives attempting to extricate themselves from a situation they created because of their own thoughtless rhetoric.
Conservative politicians all too often shout without thinking. The Court saved them from themselves. Had they been victorious this time around, they would have lost because, as Squeeky said, many who would lose subsidies are their constituents. An untenable situation that would have forced states that do not want to embrace Obamacare to do that very thing. And conservatives who think a different ruling would have had the effect of scrapping Obamacare are again fantasizing.
The real problem for conservatives is not the Court — who they have been looking to to save them from a law they don’t like — hows that for a switch — but a paucity of conservative politicians and pundits on the national level who can convincingly make their case. Most of the ones who try are inept and think shouting and threatening is a substitute for a well-reasoned, persuasive argument, and in doing so alienate independents by sounding irrational and just plain mean. If liberal policies were what this country wanted, conservatives would not have made the gains they made in the last election. Look at state legislatures and governorships, and the gains conservatives made in blue states. But if conservatives don’t get their act together on the national level with a cogent, persuasive argument, all those gains will be for naught.
Annie, the job of the Supreme Court is not to make rulings because it FEELS good. Their job is to rule the Constitution calls for. People like you are a grave threat to the republic now.
“Annie, the job of the Supreme Court is not to make rulings because it FEELS good. Their job is to rule the Constitution calls for. People like you are a grave threat to the republic now.”
Sooo….. Annie how does it feel to be outed as a public menace? Who would have thought nurses have such power? Religious terrorists, right wing terrorists, decay in the inner cities, are problems that all pale in significance when compared with the real threat to the republic – progressive nurses.
And how exactly do they wield this terrible power to destroy? – rhetoric? voting? posting on blogs? How unfair, to use the terrible power of their words to change to course of events!
D Rosenman. Thanks for posting. Scalia et al actually made it easy for Roberts this time around. And that’s probably why Scalia was apoplectic.
David Rosman,
It may be accurate to conclude that’s what Congress intended but it is not in their constitutional authority to correct their flawed construction of the law.
Craig,
That was my question from the beginning. Why the states would expend one nickel if they could simply sit back and let the feds foot the bill.
Of course as part of this decision, one needs to ask a very simple question. Why should states bother to set up exchanges at all?
“Of course as part of this decision, one needs to ask a very simple question. Why should states bother to set up exchanges at all?”
Right wing politicians have already answered that for us when they demand that social well fare programs be converted to block grants – so that the states can craft programs to fit their unique local conditions.
Whether it is programs ‘carefully crafted for the state’ or ‘one size fits all’ federal programs, congress intended that every citizen be eligible to receive subsidies according to need.
Isn’t ironic that it is right wing politicians in the states who have refused to use the power available to them and craft programs best suited for their citizens.
My favorite footnote in Roberts’ opinion.
[It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.] http://www.businessinsider.com/john-roberts-opinion-on-obamacare-2015-6#ixzz3eAtQ3dXM
The Supreme Court has brought upon itself shame and great disrespect with this decision. Our country is now ruled by 1 elected man and 6 unelected women and men. They have nullified Congress and established tyranny. They don’t care what the people want anymore. Elected representatives have been rendered useless. What a disgrace. We need a new government that actually rules with the consent of the governed.
The above quotes are from Justice Scalia.
““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.’”
“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. …
“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.’ … [T]he 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. …
“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.”
“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.”
“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.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”
Annie
“I’m hoping this opens the door to Medicare for All. It’s the next step. And way past time.”
= = =
Can you feel the Bern?
Linda Greenhouse in the NYT:
http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?_r=0
quotes Roberts as he highlights Scalia’s hypocrisy:
“Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.”
and here is Roberts again:
“And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.”
Roberts seems to be arguing that if Scalia applied his own previously stated standards then Scalia would have to side with the majority.
Basically Roberts is pointing out it is Scalia who has changed his standards for interpreting the law in order to arrive at a political result.
You know your screwed when the plain written word and supporting verbal statements are trumped by legal arguments. Where you both are incorrect is I’m not complaining about the rule of law. I’m complaining that we no longer have the rule of law. Now that I’m finished with my emotional release I will exit this blog and go sharpen my pencil.
Thanks JT!
Mike A
I concur. Complaining about the rule of law without ever proposing a legal argument is the equivalent of a dull pencil : pointless.