Scalia is fannish

[calimac]

The US Supreme Court has issued a small raft of gratifyingly intelligent decisions in the last few days, which have generated the most amazing, and often hilarious, sputter from their conservative opponents. I want to go back to the ACA decision, King v Burwell, and focus on that.

You may recall that this entire case was about a legislative drafting error. When the federal exchange was created late in the drafting process, the folks responsible forgot to add a reference to it to one section allowing persons to buy insurance on state exchanges. The intent to include the federal exchange in this was obvious, and nobody would have paid any attention to the exclusion had not some opponents of the ACA, on the "any port in a storm" theory of looking for something to derail it with, filed suit on the basis of this.

In his majority opinion, Roberts threw the suit out on the grounds of obvious legislative intent. He didn't have to say anything about the untold chaos that would have ensued had the opposite reading prevailed.

But it's Scalia's dissent that interests me. His position is that the law says "state exchanges," and that the words "or federal" aren't anywhere in there. That this was an error means nothing to him. That's what the words are, and that, as far as he's concerned, is the end of it. He uses his usual patented incredulity on the suggestion that anyone could think otherwise.

You know what this reminds me of? This obsession with holding a speaker to the literal meaning of a statement, even if it's obvious that it's shorthand for something else, or that the speaker misspoke? It reminds me of a lot of science fiction fans. There's a mental disease, a failure of comprehension that seems limited to the hyper-intelligent.

In fandom, we take great pleasure in making humor out of literal or offbeat readings of statements. For instance, I remember a hilarious fanzine discussion of road signs, parsing this "slippery road" image as meaning "Giant Tire-Eating Snakes" or "Drive In This Manner." But these are jokes. They depend for their humor on knowing what was really meant.

It's when you get people who don't know it's a joke, who insist on reading everything literally and mean it seriously, that you're in deep weird fandom territory, like Vox Day thinking that John Scalzi's satirical essay in the persona of a rapist meant that he was admitting to rape. And that's where Antonin Scalia lives. After reading his dissent, I spent the next day imagining him - in cartoonist Ruben Bolling's Crusading Justice Scalia manner - breaking in every time I read or heard a statement not to be taken literally. Sign on a bookstore's fiction case: "Shelved By Author." Enter Scalia: "Do you mean the authors personally came in and shelved these books? If you meant that you arranged them in alphabetical order by the authors' last names, why didn't you SAY SO? Words have no meaning!" Waitress in restaurant: "Would you like our gluten-free menu?" Enter Scalia: "What does it matter what the menu is made of? If you meant a menu listing gluten-free foods, why didn't you SAY SO? Words have no meaning!" Hand-chalked sign on a food truck: "Philip Cheese Steak." Enter Scalia: "Did Philip make this cheesesteak? If you meant Philadelphia, why didn't you SAY SO? Words have no meaning!"

He's following me everywhere.

Comments

[whswhs.livejournal.com]

There is actually a theory of legislative intent that makes the limitation of subsidies to state-established exchanges not an error, but a deliberate policy: That Congress did this with the aim of placing state legislatures under pressure to establish exchanges (at a time when it looked as if many legislatures might be recalcitrant) by threatening them with the hardship of the people of their states having to do without subsidies if state exchanges were not instituted. That is, that it was a form of legislative arm-twisting.

This does gain some credence from the explicit provision of the original ACA that states were to expland eligibility for Medicaid, and that any state that did not do so would lose all Medicaid funding—not merely not get federal aid with the increased Medicaid expenses (which would have been perfectly sensible if the states didn't take on increased expenses!) but not get any further funding at all. That provision was struck down by the Roberts court in an earlier year as impermissibly coercive. But where there was one provision with coercive effect, there could have been another.

And the very "untold chaos" to which you refer would surely have caused enough hardship to make it a plausible threat, in the spirit of "Nice health care system you got here; be a shame if something happened to it."

[kalimac.livejournal.com]

That theory is, however, factually incorrect. It is pure looney conspiracy theory.

[kevin-standlee.livejournal.com]

Yeah, I've heard the theory, but if that's what Congress intended, it would have said so somewhere in the legislation, at least in the enacting clauses. You can't hide elephants in mouse holes.

I've been prone to teasing convoluted meanings out of WSFS rules myself, and have been called to order on it. I have consequently been trying to persuade those people submitting rules changes to include declarations of legislative intent in their proposals. For example, "Moved, to change the WSFS Constitution to [general statement of intent] by [type of change] as follows:" with the actual technical change in the text of the constitutional amendment. While not perfect, it gives us some guidance down the road in trying to interpret rules when it turns out that the technical wording doesn't perfectly match up with the real world.

[vgqn.livejournal.com]

Hilarious!

[randy-byers.livejournal.com]

Did you see that Roberts cited Scalia's dissent from the previous ACA case in his opinion? Specifically he cited Scalia's comment that "Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all."