Antonin Scalia, Political Analyst

At oral arguments, the judge reveals his jejune theory of congressional competence.

By Nathan Pippenger

Yesterday, the Supreme Court heard oral arguments in King v. Burwell, the case that tries to dismember Obamacare by exploiting what amounts to a typo in the law’s language. If the court sides with the law’s right-wing opponents, Americans who have obtained health insurance through the federal exchange at will lose their subsidies—all because of an ambiguously worded passage that, conservatives claim, limits subsidies to those Americans who purchased insurance through state-run exchanges. This is a truly ludicrous feat of bad-faith argumentation: It means that the law’s authors, in their quest to expand affordable healthcare to all Americans, decided along the way to add a line to the law that would destroy everything they were working for. Oh, and their nefarious, suicidal plan was also secret, since they never mentioned it in the long debate preceding the law’s passage. What’s more, the people who wrote the law are still alive, and they’re telling anyone who will listen that of course they never intended this insane result. But if five justices side with the challengers, none of that will matter.

It’s worth stressing just how destructive an anti-Obamacare ruling would be. Millions of Americans in the affected states would see their premiums skyrocket, and the insurance industries in those states would go into a death spiral, as healthy customers dropped out of the market, leaving ever-smaller pools of sick customers. In coverage of the case, it has sometimes been assumed that Congressional Republicans would have to address this crisis with some kind of fix that would—at the very least—minimize the political fallout (health care costs spiraling out of control!) they would face. This optimistic prediction ignores recent history and vastly overestimates the inclination of congressional Republicans to do anything useful or to help Americans facing health care crises. Which is why it was depressing, but predictable, to see Justice Scalia seemingly endorse it. This part of oral arguments, via National Journal, captures Scalia’s exchange about the ruling’s potential fallout with Solicitor General Donald Verrilli:

But Scalia wasn’t sure it would be that bad.

“What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue?” he asked Verrilli. “I mean, how often have we come out with a decision … [and] Congress adjusts—enacts a statute that takes care of the problem? It happens all the time. Why is that not going to happen here?”

“This Congress, your honor?” Verrilli replied. “Of course, theoretically, they could.”

Verrilli’s response—“This Congress?”—is a masterpiece of understatement. He seems genuinely dumbfounded by Scalia’s jejune prediction that, if President Obama’s key accomplishment were imploding, congressional Republicans would ride in to save the day. First of all, if conservatives were so worried about the fallout from this lawsuit, they’d simply pass a new law clarifying the language in the ACA, and affirming the obvious interpretation of it. They are pursuing this lawsuit with the express purpose of bulldozing Obamacare, and new polling shows that only one in four Republicans want Congress to pass a subsidy fix if the Court guts the ACA. With no pressure from the base, Scalia is reduced to relying on the good sense and prudence of congressional Republicans. If you think these are the sort of people who can be frightened into swift action by the prospect of imminent crisis, I’d only ask you to remember the way many of them approached the debt ceiling. How many times do you want to depend on these people to save you from disaster?

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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