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Moops, He Did It Again


A major and surprisingly unequivocal victory. Roberts and Kennedy aren’t heroes for rejecting what should have been laughed out of court, but in the political universe we do live in I give then due credit. And unlike Roberts’s Sebelius opinion there are no arbitrary bones thrown to the challengers or federalism nonsense, just the lucid opinion carefully explaining that the statute means what everyone involved always thought it meant.

The protesting-too-much purple prose in Scalia’s dissent has been well picked-over, but I do want to highlight his continuing daydream believing about Republican legislators:

As he did at oral argument, Scalia also showed himself as embarrassingly out of touch with American politics circa 2015. “The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there,” wrote Scalia. “If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges?” Apparently, Scalia intends this question to be rhetorical; but the actual answer is Of course we would not. We’ve already seen more than 20 Republican-governed states turn down large amounts of free federal money that could be used to expand Medicaid, inflicting significant human as well as economic costs on their states. The idea that these states would act to cooperate – or simply in the best interests of their citizens – this time is absurd. And whatever Scalia thinks, Congress didn’t think they would, either, and established a federal backstop exactly for that contingency.


As Greg Sargent said earlier today, I think that the work that he and other journalists and scholars — a non-exhaustive list would also include Nick Bagley, Abbe Gluck, Jon Cohn, Stephen Brill, Michael Hiltzik, and Eric Segall — was very important, particularly given that at least Kennedy probably changed his mind after the cert vote. A strict “card says Moops!” argument was always going to be a tough sell for Roberts and Kennedy, which is why Adler and Cannon invented their ridiculous theories about congressional intent in the first place. The relentless accumulation of evidence that Congress absolutely did not intend to establish a federal backstop that didn’t work…certainly didn’t hurt. Optimism of the will.

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