The Full Scalia

It’s been a long time since we’ve had a week like this in America.  A long time indeed.

Conservatives and religious leaders (some of them anyway) are railing over (a) the Supreme Court decision on “Obamacare” and (b) on marriage equality.

Fat Tony’s head was exploding as he went into full Scalia mode, penning two withering minority dissents filled with invective primarily against the majority Justices and the Court threat to American democracy.  It is clear he believes that he, and only he, has cornered the market on truth.

Too bad Tony.  In comparison, his glum compatriots, Alito the lesser and Clarence the Silent could only go along.

Our Chief Justice John Roberts split his votes – for Obamacare and against marriage equality.  He knows how to walk the line.  It allowed him to preserve his conservative credentials.

What were these cases about and why were they important?

Several years ago there was a challenge to the ACA (Affordable Care Act) on the grounds that the government could not force individuals to buy health insurance from private insurers under the threat of penalty.  The plaintiffs essentially characterized this penalty as a “fine”.  The IRS, responsible for collecting the penalty said “not so”; the penalty is not a fine.  It is a tax to be collected when the individual files his tax returns – no health insurance  means a higher tax.  A lower court affirmed this decision which was then appealed to the Supreme Court.

Chief Justice Roberts was the deciding vote in a 5-4 decision penning the majority argument that the penalty was a tax and not a fine.  Scalia of course led the opposition.

No one of course mentioned that those making the argument that they couldn’t be forced to buy insurance from a private company also opposed the inclusion of a public sector option.

This time the case revolved around the availability of tax credits for those qualifying residents of states which had not set up their own “health exchanges”.

The Act required the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans.  The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish “such Exchange” if the State does not.

The Act provides that tax credits “shall be allowed” for any “applicable taxpayer,  but only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State”, as opposed to simply picking up the phone and buying  health insurance directly from the insurer which would make one ineligible for tax credits.     An IRS regulation interprets that language as making tax credits available on “an Exchange,” regardless of whether the Exchange is established and operated by a State or by the Federal Department of Health and Human Services.

Four plaintiffs in Virginia argued that qualifying residents in their state were not eligible to receive tax credits as Virginia (the state) had not set up an “exchange” and that the law was not meant to include the Federal exchange, which was specifically set up for  residents of those states which had not set up their own exchanges. .

The plaintiffs were essentially arguing that the Federal exchange was not a “state exchange” since it was not established by Virginia.  In essence, they were arguing that the intent of Congress was to omit tax credits for those residents of states which had not set up their own health exchanges.

A victory would have stripped over three million people of their tax credit subsidies – those residing in states such as Florida (where I live) which has done everything possible to bring down Obamacare.

My youngest daughter and her husband are receiving such credits.  They had health insurance before the ACA – it was their largest monthly expense – bigger than their mortgage.  The ACA allowed them to save some money and afford a better health care plan.  They applied through the federal exchange only because Florida refused to set up an exchange for it’s residents.  It rejected additional Medicaid funds as well for those too poor to buy insurance even with a federal tax credit.

Well by a 6-3 decision the ACA was saved – and Scalia went nuts.  His argument that the words “state exchange” precluded tax credits for those who applied through the Federal Exchange was tortured logic to the extreme.  Too bad.  Shit happens Tony.  The intent of the law was clear – all qualifying residents were eligible whether or not they applied through their state or the Federal Exchange.

Now don’t get me wrong.  I would scrap Obamacare in a heart beat for a single payer system – Medicare for all.  Alternatively, I would add a public option to the exchanges to give applicants a choice between private or public insurance.  But what we have is what we currently have.  Thanks to Chief Justice John Roberts.

As for marriage equality – what can I say?

I don’t expect churches and the religious to accept the ruling without gasping for breath.  But it doesn’t affect you directly – you  may continue to practice your beliefs – I do not.  Your church won’t be forced to marry anyone.  Catholic churches didn’t marry divorced people nor perform inter-faith marriages unless it was agreed in advance that any children would be raised as Catholics.

On the other hand, bakers will probably have to bake wedding cakes for gay weddings.  One should  no more be able to reject a wedding cake for a gay couple than you can for a black couple.    Your business serves the public.

You don’t have to like gay people.  You don’t have to hang around with them.  You are still free to throw your gay son or daughter into the street.  You can still fire them.

Official marriage on the other hand insures that your son or daughter’s partner can decide on medical care if need be; that they can’t be barred from a hospital room by hostile family.  It makes them next of kin, guardian of any children, beneficiary of any estate, eligible for social security survivor benefits etc.

That’s what is meant by “equality”.

Scalia and the minority argues that this is a decision that each state should make.  Kind of like the states making decisions on slavery, inter-racial marriage, health exchanges, voting rights, segregated schools etc.    This is the same guy who has turned corporations into people.  He is the ideal of the person that dumb people think is smart.

So live your life and mind your own business.  And stop worrying about what Jesus would do.



About toritto

I was born during year four of the reign of Emperor Tiberius Claudius on the outskirts of the empire in Brooklyn. I married my high school sweetheart, the girl I took to the prom and we were together for forty years until her passing in 2004. We had four kids together and buried two together. I had a successful career in Corporate America (never got rich but made a living) and traveled the world. I am currently retired in the Tampa Bay metro area and live alone. One of my daughters is close by and one within a morning’s drive. They call their pops everyday. I try to write poetry (not very well), and about family. Occasionally I will try a historical piece relating to politics. :-)
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3 Responses to The Full Scalia

  1. beetleypete says:

    Don’t know if you have seen this story Frank.
    I don’t know much about the politician you mention, but I don’t like the sound of him one bit. As for individual states having rights to overturn laws made by the Federal Government, isn’t that how the Civil War started?
    Best wishes, Pete.


    • toritto says:

      Hi Pete – Indeed we had our bakery fiasco here. Reminds me of when segregation in public facilities was banned in the sixties – many southerners argued they should be free to serve whom they wanted. The Courts ruled that they were a profit making business serving the public – all of the public. They were free to do so or go out of business.

      And yes, the Civil War was fought over that very issue – whether or not the federal government could enforce certain laws in all states. The Confederate states held the view that the role of the federal government should be a small one and that most power should be local. Slavery was ultimately the primary issue. Regards.


  2. Thom Hickey says:

    Plenty of robust common sense here! Pity you’re not a member of the Supreme Court! Regards Thom.


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