This guy Jon Hall really covers some ground.
He even covers an IRS trick that Roberts and Scalia didn’t address.
And Hall puts me back in a pickle–When or will the SCOTUS ever consider its job of enforcing the constitution and preventing junk science, junk composition, junk policy making as well as violations of the separation of powers created by the constitution?
Yes, to me the law is sacred, the constitution is one of its most sacred texts–written by geniuses who knew something about law, society, morality, governance–the need to anticipate civic misconduct and the problem of faction. How governments descend into tyrannies.
The bamstercare legislation was bound to be poorly or wrongly fashioned because the authors are mere mortals, but I disagree that it was incoherent. The John Roberts solution was to try to get a Chevron deference variation for what was straight forward wrong wording.
I will call this new legal/jurisprudential gambit rubberized Chevron deference.
The bamstercare creators didn’t anticipate the obvious, that if the subsidies were only available through State created exchanges, they couldn’t ignore the language.
However now the Chevron formulaic solution for allowing agency hegemony includes agency discretion to change legislative language.
Why is it that I could have predicted that an ambitious and corrupted man like Roberts could fashion such a “solution” for misbegotten language in the bill? Because the original Chevron concept on agency discretion had been stretched and rubberized to allow agency caprice and arbitrariness in its interpretations of science, economics, statutory language, provisions for scientific integrity in statutes, protections of integrity incorporated into statutorily required processes like peer review and inter agency review, whatever.
Don’t these judges understand, you let ambitious bureaucrats loose in the executive branch, regardless of restraints like the Administrative Procedure Act, don’t expect them to restrain their “discretion” to make their plans and execute them, headlong, and with no respect for the legal procedural and content restraints. Allowing under a deference rubric is how many steps from fixing bad language when the agency says the language frustrates the intent of the law.
If you let an agency bureaucrat bend the meaning of the commonly understood words in the administrative Procedure Act–ARBITRARY AND CAPRICIOUS, you think a language screw up won’t be fixed as a correction on an intention?? REALLY?
Why is Scalia so surprised or alarmed that a badly worded law gets fixed by amendment on the fly to fit the perceived intent by a non legislative branch fixing for the intent of another non legislative branch? Scalia wrote an opinion in American Trucking that allowed bad science and economic research adn policy making to be used AT THE DISCRETION of the agency. IF ARBITRARY AND CAPRICIOUS HAS NO MEANING, WHAT’S SO HARD ABOUT SUBSTITUTING LANGUAGE THAT ALLOWS SUBSIDIES, EVEN IF THERE IS NO STATE EXCHANGE? LYING FOR JUSTICE BECOMES EDITING FOR JUSTICE. BAD LANGUAGE GETS FIXED, BAD SCIENCE, ECONOMICS POLICY MAKING DOESN’T VIOLATE THE ARBITRARY AND CAPRICIOUS RESTRAINTS BECAUSE THEY ARE IGNORED?
Scalia has been a big Chevron Deference man–I made fun of his deference arguments in the American Trucking Opinion more than 10 years ago. Now he’s offended that Roberts would stretch the rubberized Chevron excuse for Agency excess?
Scalia bit by his own viper? Chevron deference and judicial restraint–combine to violate the oath of a Supreme Court judge to uphold the constitution.