Justice Scalia Misses: Obamacare Is Not a Law

Justice Antonin Scalia’s dissent in King v. Burwell, as well written as it is, falls into a Pavlovian trap set by the Obamacare spin doctors that defies truth, which I highlighted recently in “Spinning Obamacare Will Not Make it Legal.”

First truth is, that even after the 6-3 decision in King v. Burwell, the Supreme Court has never upheld the entire Affordable Care Act. Plenty of additional lawsuits are still working their way up to the Supreme Court, including Sissel v. HHS in the D.C. Circuit, and Hotze v. Burwell in the 5th Circuit, both challenging Obamacare under the Origination Clause, which provides: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills” (Art. I, Sec. 7, Cl. 1).

Second truth is, that Obamacare originated on Nov. 18, 2009 as Sen. Harry Reid’s self-described “Senate Health Care Bill,” which is now projected by Heritage to raise “nearly $800 billion over 10 years,” i.e., a “bill for raising revenue” in any common sense understanding of those constitutional words.

The last time a federal court struck down an Act of Congress for violating the Origination Clause was 100 years ago in Hubbard v. Lowe. That judicial opinion began, “That an unconstitutional statute is not a law at all is a proposition no longer open to discussion.”

The same judicial opinion concluded, “The Cotton Futures Act is not, and never was, a law of the United States. It is one of those legislative projects which, in order to be a law, must originate in the lower house.”

This is how the concluding paragraphs of Justice Scalia’s otherwise brilliant dissenting opinion in King v. Burwell would read if one were simply to substitute for the words “the law,” “the statute,” or “the Affordable Care Act,” on the one hand, the 100-year-old words from Hubbard v. Lowe:

“Today’s opinion changes the usual rules of statutory interpretation for the sake of [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’]. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] in order to save them from unconstitutionality . . .

“Having transformed two major parts of the [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’], the Court today has turned its attention to a third. The [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] 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 [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] from working as well as hoped. So it rewrites the [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] to make tax credits available everywhere. We should start calling this [‘not a law at all . . .  one of those legislative projects which, in order to be a law, must originate in the lower house’] SCOTUScare.

"Perhaps the [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] 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 [‘not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house’] 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.”

Now that the U.S. Supreme Court has voted 6-3 to save what 100 years ago would have been called out as “not a law at all . . . one of those legislative projects which, in order to be a law, must originate in the lower house,” Members of the House of Representatives can and should resist the Pavlovian urge to talk of “repealing the law” — which in truth is still “one of those legislative projects which, in order to be a law, must originate in the lower house.”

Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is a Partner in the law firm of Schmitz & Socarras LLP. Read more reports from Joseph E. Schmitz — Click Here Now.