It was an astounding decision by the high court this week after all nine justices concurred with plaintiffs in the high profile challenge to Obamacare subsidies. Yet, despite the fact that the justices concurred that the phrase limiting Obamacare subsidies to those people obtaining the insurance from exchanges “established by the state” meant what it said, six justices set that meaning aside in order to help correct a flaw in the law.
In the dissenting opinion, Justice Antonin Scalia was exasperated at how the majority justices allowed their sense of emotional goodwill to supersede their requirement to enforce jurisprudence. His views were worded in the zingers he used to poke away the ruling.
In one line, he said the majority used “jiggery-pokery” to expand the definition of “state” to include the federal government and the individual states. He criticized the majority for acting emotionally when they said enforcement of the law, as they all concurred the term “established by the state” to mean, would prevent the health care act from working which justified altering the meaning of the phrase. As a result, he stated the law should now be termed “SCOTUScare”. In a more serious note, he wisely pointed out the decision will be ridiculed for generations by constitutional scholars. Brian Bonar thought that was the right thing to do. Scalia also noted that it was bad enough for the court to strike out the term “by the state” once, but noted the justices did it seven times.