Scalia is a Scoundrel

First of all, yes Scalia is a scoundrel. But on the other hand, in each of the instance you cite, Scalia correctly cites provisions of statutory construction that the other Justices can be found to have used on particular occasions.In this case, however, I think common sense prevailed. There is absolutely no indication in the statute or the legislative history that Congress intended any distinction state exchanges and the federal ones installed on behalf of the states.From the majority opinion.

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And rigorous application of that canon does not seem a particularly useful guide to a fair construction of the Affordable Care Act, which contains more than a few examples of inartful drafting."

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Yes, and the Supreme Court can clean that up in an appropriate case. I wonder what the GOP would have been forced to do if the Supreme Court had ruled oppositely. It is in republican states that are contained the most people who would lose all health coverage because the feds had to step in and set up exchanges.

At law school one of my professors told me that such thinking was the height of cynicism.There are varied schemes for deciding cases. In this case, the issues were not constitutional but were matters of statutory construction. The rules of statutory interpretation are well known and are applied at all levels of trial and appeal. However the rules produce contradictory results.Here is a list that is pretty consistent with what I was taught.Statutory Construction | Wex | US Law | LII / Legal Information Institute

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Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute's original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.

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If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.

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Other rules of statutory interpretation include, but are not limited to:

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Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute.

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When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions.

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When the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature.

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The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.

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Where legislation and case law conflict, courts generally presume that legislation takes precedence over case law.

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The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.

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A court may also look at: the common usage of a word, case law, dictionaries, parallel reasoning, punctuation

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Use of the plain language gets Scalia the result he wants, and as long as he does not look at too much language, no lack of clarity is evident. Plain language is the first of the rules, but none of the rules are inviolate.I cannot say that Scalia chose his interpretive scheme to fit a desired end. But what I can say is that Justices are the very definition of competent, and every word of whatever opinion a Justice signs signs is going to be justified by an application of a well recognized and accepted interpretive scheme. It may or may not be the case that a Justice's actual reasoning in coming up with the answer is mapped out in the opinion. Scalia is a right wing nutcase and his rulings are going to be those of a right wing nutcase. Thomas appears to have a chip on his shoulder about not being taken seriously as a right winger. Small wonder either of these guys would not vote for ACA.The lawyer who identified the problem with the wording in the statue was fully aware that the law was simply badly drafted and that there was no intent to distinguish between federally established and state established exchanges. The 6 Justice majority properly recognized that the error was inconsistent with other portions of the statute.

As you've noted, Scalia does frequently find occasion to berate his colleagues. Yes, it is immature, but he has done it often enough that we cannot really say he has reserved anything.But, yes, a decent human being might well have curbed his tongue here. I'm reminded of the situation in Brown v. Board of education which despite being controversial ended up being a unanimous decision because the Chief Justice worked his colleagues to get language they could buy into once it was clear what the majority would be.Trying to do that with this court would be like trying to herd cats, and I suspect that Justice Roberts knows better than to try it anymore. Justice Roberts writes his own dissent because he simply cannot sign onto the opinions that Scalia or Thomas wrote wrote. Alito also writes his own opinion. Only Thomas signs Scalia's crap. Thomas and Scalia each sign onto all of the dissenting opinions.Edited by NoNukes, : No reason given.

That's a nice sound bite. Now let's see you point to a provision of law or the constitution that backs you up.Any court in making a legal determination must interpret the law. Interpretation means a number of things including, but not limited to determining legislative intent when passing the law. Unfortunately for the current bunch in Congress, their current intent does not matter. It is instead the intent of the legislators who enacted passing the law that matters. We can note that not a single Republican voted for ACA.And of course to do their job the Supreme Court (like any other court) must interpret the law. And in fact for an appellate court one might make the case that interpretation of the law is their primary duty. What makes the Supreme Court special is only that the SC gets the last word on the subject. When the Supreme Court interprets the law, their word is binding on Congress and the President.FWIW, the entire law suit pretty much demonstrates how far from correct your position actually is. In the case of the dispute about the ACA, there were no constitutional issues at stake in the entire dispute. So apparently everyone involved in the law suit expected something other than a ruling about whether the law was unconstitutional. In fact, what both sides were expected was that the law would be interpreted according to what was in their legal briefs.Here is a link to article III, if you think that will help you make your case. But quite frankly, I'm just reading the standard wingnut grumbling about a case that did not proceed as you would have wished.Since there were no Constitutional issues involved, the legislature is free to fix whatever they don't like about the SC decision. So why aren't they simply passing a new law that prevents ACA from applying to exchanges established for but not by the States? Because in actuality, no Congressman really wants to do that.Article III | U.S. Constitution | US Law | LII / Legal Information InstituteEdited by NoNukes, : No reason given.

You are looking in the wrong place. The sentence describing where the entire judicial power resides does that. That power resides entirely in the Supreme Court and the inferior courts. You are asking a question that has been settled since Marbury v. Madison back in the early post Constitutional history of this country. Why do conservatives hate the constitution? This interpretation was done only by the conservative chief Justice. No other Justice on the court agreed with this definition.What is the difference between a penalty and a tax? If it is simply words then your claim would seem to lack substance. It is not necessary for the House of Representatives to point to a specific part of the constitution and identify that as the support for a law. It is enough that the statute is found to comply with the constitution. The fact that they did not make such a statement is meaningless. In fact, once the law is passed, what happens is that the executive branch is left to determine the method of collecting the money. If it is necessary to collect it as a tax rather than a penalty then that's what will happen. I'll note that the organization that is in charge of managing the procedure is the Internal Revenue Service.Finally, as I noted that the characterization of the penalty as a tax is the construction of a single, conservative Justice, namely the chief Justice. Four other Justices found essentially that the Commerce Clause was sufficient authorization to pass the entire legislation using fairly conventional reasoning. Your entire remarks about the Court ignoring the constitution, if it is to be given any weight, would apply only to Chief Justice Roberts. Really? Do you think any fewer Republicans would have voted for it. Fewer than none?Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.Edited by NoNukes, : Answer an additional question.

Maybe.In any event it's great to hear from you. Been a while...

Of course the question of whether the Supreme Court has the final say on federal law was settled in 1803. I feel sorry for a conservative that is not used to that situation by now.

As Dr. Adequate pointed out, the technicality regarding origination was accommodated during the enactment process.But more to the point, your claim was that the bill was passed based on mere politics versus law. My rebuttal is that the liberal justices did not call the penalty a tax and that your remarks and reasoning are inapplicable to them. On the other hand, Roberts did not rely on the Commerce Clause, but on General Welfare Clause. I agree that Roberts reasoning is weaker than that of the 4 other Justices who voted for the bill. On the other hand, accusations of more reasonable leveled at those Justices who did not see the connection to Interstate Commerce. What's up with that?

That particular ship sailed over 200 years ago. Sorry if I cannot whip on any sympathy for your point of view. Let me suggest that a situation in which disputes continue endlessly with no possible resolution is certainly worse. Perhaps it is the concentration on just a few recent cases in which conservatives did not get their way despite having a 5-4 home field advantage on the Court indicates that conservative expectations are unreasonable.

Lol! This is pure hate speaking. Of course it was well known that some bill would be used for this purpose.There is nothing wrong with the tactic of working around the formality of having the bill introduced by the House. It has been used before to pass Republican initiated bills. Only the idea that you don't like the ACA and would like some way to invalidate the act makes the workaround appear nefarious to you.

The Federalist papers were one view of what the country should look like. But they were not 'the' type of government. And it is clear from reading both the constitution and the federalist papers that the 'Federalists' did not always end up getting their way.I understand that it is the way of some to pretend that 1) the founding fathers are some monolithic block all in agreement on every issue and 2) that the country ought to behave exactly as that mythological view suggests. But that view is just simplistic. The founding fathers had a very limited view on what equality meant and who was able to vote and participate in democracy that we ought not emulate, and they were not in agreement on every issue.Edited by NoNukes, : No reason given.

No. The delusional part of your thinking is that there was some plot by Democrats to hide a tax. The details of the penalty for not having health care as well as the intent of the penalty were well known. The penalty was characterized as a tax by one Supreme Court Justice and not by any Democrat.

What is the difference between a $500 dollar penalty for not having health insurance that goes into the tax coffers and a $500 dollar tax that you can avoid by having health insurance?Nothing at all. Let's recall that in the form that the bill was passed, it was expected that all 50 states would have exchanges, that medicare would be expanded to cover the poor in every state, and that no one except a few people wealthy enough to cover themselves would have any reason to forgo health care.Part of this formula unraveled when the mandate to expand medicare was made voluntary.Edited by NoNukes, : No reason given.

Correct. In fact the bulk of the convolution in the tax code is due to Congress providing exemptions as incentive for corporate behavior. Federalism leaves very little police power in the hands of the feds. As a result, taxing and exempting is the major method by which Congress gets individuals, corporations, and even states to do anything.

I seem to recall the Republicans trying exactly this stunt in an attempt to have ACA appealed. It actually turned out though that screaming about the government shutdown was fairly universal with the Democrats receiving essentially no blame for the situation, and the Tea Party eventually being excoriated. I find it surprising that you would recommend the same failed tactic. Wait. I am not surprised.In any event, the bill that became the ACA was originated in the house, and then amended substantially in the Senate to something close to its current form. So the constitutional requirement was met. There was an opportunity to challenge the process, but the majority of House of Representatives at the time was in favor of ACA. Why would they then insist on pressing the issue?