The Corner

Law & the Courts

From Scalia’s Dissent

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that ‘[o]ur task is to apply the text, not to improve upon it.’ Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 U. S. 120, 126 (1989).

Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress ‘meant [it] to operate.’ Ante, at 17. First of all, what makes the Court so sure that Congress ‘meant’ tax credits to be available everywhere? Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges. More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. ‘If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’ Lamie, supra, at 542. In the meantime, this Court ‘has no roving license . . . to disregard clear language simply on the view that . . . Congress “must have intended” something broader.’ Bay Mills, 572 U. S., at ___ (slip op., at 11).

The full text is here.

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