The appeal is a statutory interpretation case, not a glamorous constitutional one, and the principal argument is whether four errant words in the Affordable Care Act prohibit tax subsidies in any state in which the federal government, as opposed to the state itself, runs the insurance marketplaces or “exchanges” required under the law. If the four Virginia petitioners in this case prevail with this claim, more than 8 million people (and probably many more) will likely lose access to health insurance, with life-threatening consequences for some of them.
She gives a rundown of the proceedings so far as has Scott Lemieux and one thing is for certain at this point in the case.
Particularly remarkable, however, was this exchange:
SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?
VERRILLI: Well, this Congress? [laughter]
VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.
SCALIA: I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without insurance and whatnot — yes, I think this Congress would act.
Scalia’s argument, of course, came straight from a land of willful fantasy. It’s tempting to dismiss Scalia’s comments as politically naïve, but I think it’s more pernicious than that. Scalia has long shown an affinity for the most witless Fox News talking points. Republicans have been making a conscious effort to reassure the court that they have a plan should the court gut the ACA. Needless to say, they don’t actually have any plan — pretending to have a plan is their only plan. Indeed, Republicans in Congress are so dysfunctional that they can barely even pretend to have a serious alternative, and any attempt to fix the law would assuredly be stillborn.
The Republican alternative should the court willfully misread the law and ruin the federally established exchanges is a con somewhat less sophisticated than selling oceanfront property in Wyoming — but it’s good enough for Scalia! That tells you all you need to know about the extent of his fidelity to judicial ideals.
Not one serious person believes that Republicans would step up and actually legislate a new health care plan for America if the court strikes down the ACA. Is Scalia this dumb? I don't think so. Can he be? I believe he knows how this Congress has operated ever since Obama took office and also knows that since the ACA was signed into power, Republicans have never offered up any replacement at all except when they say the word "replace" on attack ads during a campaign season. Is he trying just to give himself cover when he votes against Obamacare and then he can blame Congress?
And let's not forget the fact that the House Republicans have voted 56 times to kill or scale back Obamacare.
This is how the Republicans deal with being a congressional party. They use every lever of power they hold to obstruct absolutely everything and then blame the President for being unable to get anything done. Their only negotiating stance is to pass their agenda or nothing. And even then they'll find reasons not to do it. If the Democrats manage to pass anything they then do whatever it takes to disrupt the implementation including running around to the states to persuade them to sign on to something (the federal exchanges) they have every intention of destroying. After which they will blame the resulting carnage and pain on the president and his party for failing to stop them.
As Lemieux says, it's a neat scam. And it fits right in with the conservative mind. This what they love to do more than anything: screw with other people. It's enjoyable in a way that tax cuts for the rich never will be.