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Dershowitz: Court Relied on Humanity in Obamacare Ruling

By    |   Thursday, 25 Jun 2015 07:35 PM

Renowned civil-rights attorney Alan Dershowitz hailed Thursday's Supreme Court ruling that saved the Affordable Care Act from disaster by preserving its federal tax subsidies and said it showed judges are "human beings" who sometimes favor politics above the law.

"It's the right decision based on a flexible view of how the courts should interpret statutes," Dershowitz said Thursday on "The Steve Malzberg Show" on Newsmax TV.

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"Now clearly the statute itself does have some problems, but it was intended to apply across the board and there was just a drafting error.

"The hypocrisy, a little bit, is that the two justices who became the swing votes, [Anthony] Kennedy and [John] Roberts, have written opinions in the past in which they said, 'Well, you know you really have to look at the language of the statute, not so much the intent of the legislature.'

"So one can argue there's a little bit of result orientation here. They just didn't want to undo legislation which clearly had the general intent of going forward under current circumstances."

The ruling means that subsidies will be available to all 50 states, not just 13 states that set up their own exchanges and three with state-federal hybrid exchanges. A lawsuit had claimed four words in the healthcare law — "established by the state" — meant subsidies were only valid in those 16 states.

Republican lawmakers, who declined to set up exchanges in their states, had hoped the court would side with the suit and, in effect, kill the healthcare law.

Dershowitz — author of "Terror Tunnels: The Case for Israel's Just War Against Hamas," published by RosettaBooks — said Justice Antonin Scalia's dissenting opinion was "completely consistent" with his past judicial philosophy.

"He always says you don't look at legislative intent, it's too peripheral and ephemeral. You just look at the words of the statute. He's being completely consistent," Dershowitz said.

"The interesting thing is when they appointed Roberts to be Chief Justice, they really though they were serving the conservative interest. That backfired. When Roberts became chief justice, which he became right away, I think he decided to be a judicial statesman.

"If he had just been an associate justice, he might very well have come out the other way on the original case [which saved Obamacare] and on this case. But as chief justice, he sees his role as preserving the integrity and durability of the court and that's an important thing."

Dershowitz said while the Supreme Court should only be concerned only with the law, not politics, that's not the way it works.

"Inevitably judges are human beings. They live in Washington, D.C., which is a political city, they understand the realities, and they act accordingly … [The court] looks at the totality of circumstances and says to itself, 'Are we going to do more harm than good if we strike this thing down?' And they appropriately concluded they would do more harm than good."

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Renowned civil-rights attorney Alan Dershowitz hailed Thursday's Supreme Court ruling that saved the Affordable Care Act from disaster by preserving its federal tax subsidies and said it showed judges are "human beings" who sometimes favor politics above the law.
Alan Dershowitz, supreme court, obamacare, affordable care act
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2015-35-25
Thursday, 25 Jun 2015 07:35 PM
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