Some Subtle Textual Arguments in King v. Burwell Addressed to Justice Scalia

In  a previous post I set forth the three statutory provisions that are under consideration in King v. Burwell and described the powerful constitutional arguments that were asserted by the federal government in support of the proposition that federal subsidies for health insurance under the Affordable Care Act are available to citizens in every state. These constitutional arguments were addressed to Justice Kennedy (who is committed to Federalism) and Chief Justice Roberts (who follows a pragmatic approach to legal interpretation). In this post I cover the more subtle textual arguments that were addressed to Justice Scalia.

King v. Burwell and the Separation of Powers

     On February 5 the New York Times published an op-ed by Linda Greenhouse, a leading commentator on the Supreme Court, entitled The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court. Greenhouse argues that King v. Burwell, the Affordable Care Act case currently pending in the Supreme Court, involves far more than mere questions of statutory construction and contends that the case has political and constitutional implications that put the Supreme Court itself in peril. I agree, and would add that if the Supreme Court eliminates billions of dollars of tax credits that Congress and the Internal Revenue Service intended to extend to American citizens that it would violate the doctrine of Separation of Powers.