Once again, context matters. You are conflating two different types of "assuming." One is, "Let's assume, for the sake of argument," which is what Alito does and is completely different. Scalia's assuming is "I am of the understanding that the law intends to do X."
The bottom line is this: Scalia didn't decide the
Halbig question in
NFIB. For all we know, he was never aware there
was a question like that presented in
Halbig. Because the issue was not raised, there's no basis for concluding that Scalia considered the question and intended to answer it in
NFIB.
But set all my other arguments aside. Let's say that you're right, and Scalia assumed that the subsidies would be available on the federal exchanges. Why should he be held to that assumption in the face of arguments he was unaware of at that time? In other words, why shouldn't he be able to change his mind once he discovers that the IRS rule isn't as ironclad as he had initially been led to believe?
In ordinary circumstances, you wouldn't hold anyone to such a high standard. Imagine if Scalia and Ginsburg went to see
Inception, and upon exiting, Scalia turned to Ginsburg and said, "I can't believe it was all a dream!" Then, two years later, Ginsburg emails Scalia, exclaiming, "Oh my God, Nino! I just read that the top wasn't Leo's totem at all! The totem was his wedding band!" Should Scalia be prohibited from changing his opinion on the question because of his statement two years prior, or would you grant him the prerogative to incorporate newly available information in deciding the issue? The fact that Scalia's statement in
NFIB came in a court opinion doesn't change anything compared with the above example. The salient facts remain the same: Scalia made a statement at Time X based on information available then, and later receives new information that calls his Time-X statement into question.
Here's how Ginsburg dealt with a similar problem to the one you're attempting to foist upon Scalia; namely, the fact that her dissent in
Hobby Lobby expressed a contrary view to an opinion she joined in
City of Boerne v. Flores: "Concerning that observation, I remind my colleagues of Justice Jackson's sage comment: 'I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.'"
Oh. My. God. You are going to an extreme with your contrarian stuff right now. I'm not going to write the whole novel for this example, but you clearly understand my point there and now I wonder if you're trolling.
Yes, I do understand your point. And it's wrong. A reader doesn't
have to conclude that Mamba shot Metaphoreus. But there was one part of this that I didn't address: let's say that Scalia wrote a book report about your novel two years ago, and in it, stated that Mamba shot Metaphoreus dead. Now, two years later, let's say someone offers him some new arguments that call that view into question. Is Scalia permitted to repudiate his prior interpretation?
No. Because naming one is an obfuscation. The problem is that the argument doesn't work in context with ALL OF THEM together.
Here's my problem with this: you could know jack shit about the law and the majority opinion in
Halbig and still make this argument. If I'm going to engage in a discussion about whether the D.C. Circuit considered 36B in the context of the whole statute, I need some indication that you're not just yanking my chain and expecting me to go about disproving a point you haven't even tried to support with evidence.
And, for all the ridicule some of you think is deserved by the
Halbig and
King challengers, bear in mind that three of the four appellate judges who ruled against the challengers concluded the statute was
ambiguous. They didn't reject the challengers' arguments out of hand--they said they couldn't determine which argument was right, and so the IRS was entitled to decide.
BTW, you're entire argument really boils down to semantics. And semantics almost is never the right position.
You say this a lot, and you shouldn't. We're not arguing over what to call something (i.e., "semantics").
Finally, you want to know what I believe about whether the ACA provides subsidies on federal exchanges. I've already answered this question: I find the challengers' (and
Halbig majority's) argument persuasive. That's not to say I can point to an individual member of Congress who subjectively believed that subsidies would be limited to state-established exchanges when he or she voted on the ACA. It means I can look at the text and see a persuasive argument that it means what it says.
