Antonin Scalia: Won’t Congress Fix Obamacare?

The conservative firebrand said Congress would probably act if the Supreme Court invalidates Obamacare’s subsidies.

Scalia Time? The justice calls Section 5 of the Voting Rights Act is a "racial entitlement."  (The Higgs Boson Photostream/Creative Commons. Photo/Stephen Masker)
National Journal
Sam Baker
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Sam Baker
March 4, 2015, 9:40 a.m.

Su­preme Court Justice Ant­on­in Scalia seems to have faith that Con­gress would fix Obama­care if the Court weak­ens it — but not so much faith in the Con­gress that wrote the law in the first place.

So­li­cit­or Gen­er­al Don­ald Ver­rilli, ar­guing on be­half of the Obama ad­min­is­tra­tion, warned the Court dur­ing or­al ar­gu­ments in King v. Bur­well on Wed­nes­day that a rul­ing in­val­id­at­ing Obama­care’s in­sur­ance sub­sidies in most of the coun­try would have dis­astrous con­sequences. Premi­ums would skyrock­et, mil­lions of people would lose their cov­er­age, and many states’ in­di­vidu­al in­sur­ance mar­kets could des­cend in­to chaos, he said.

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.”

Seated just a few feet away were many of the con­gres­sion­al com­mit­tee chair­men who would have to come up with and pass such a fix, in­clud­ing Sens. Or­rin Hatch and Lamar Al­ex­an­der; and Reps. Paul Ry­an and Fred Up­ton.

Re­pub­lic­ans have worked hard lately to con­vince the pub­lic — and the Court — that they’ll be ready with a fix if the justices do in­val­id­ate Obama­care’s sub­sidies.

Policy ex­perts largely agree that such a rul­ing would cause the kind of dis­rup­tion Ver­rilli de­scribed, and some con­ser­vat­ives are afraid that the Court wouldn’t be will­ing to take that risk un­less it be­lieved Con­gress would step in. Ry­an and Hatch have both pub­lished op-eds re­cently say­ing they would pro­pose a tem­por­ary patch al­low­ing people to keep their cov­er­age, per­haps even with a tem­por­ary ex­ten­sion of Obama­care’s sub­sidies.

But the de­tails of those plans are un­clear — as is the polit­ic­al strategy for get­ting Re­pub­lic­ans to agree on and pass an Obama­care “fix” that Obama could also swal­low, po­ten­tially in­clud­ing an ex­ten­sion of its most ex­pens­ive pro­vi­sion, in the middle of a pres­id­en­tial primary.

Still, Scalia seemed op­tim­ist­ic.

“I don’t care what Con­gress you’re talk­ing about,” he said in re­sponse to Ver­rilli. “If the con­sequences are as dis­astrous as you say, so many … people without ­­in­sur­ance and what­not, yes, I think this Con­gress would act.”

But his con­fid­ence in the Con­gress that passed Obama­care isn’t quite as strong.

Ver­rilli ar­gued Wed­nes­day that Con­gress could not have in­ten­ded to lim­it the law’s in­sur­ance sub­sidies to people in states that set up their own ex­changes. Maybe Con­gress just wasn’t very good at ex­press­ing its in­tent, Scalia replied.

“This is not the most el­eg­antly draf­ted stat­ute,” he said. “It was ­pushed through on ex­ped­ited pro­ced­ures and didn’t have the kind of con­sid­er­a­tion by a con­fer­ence com­mit­tee, for ex­ample, that ­­stat­utes usu­ally do. What­­ would be so sur­pris­ing if, among its oth­er im­per­fec­tions, there is the im­per­fec­tion that what the states have to do is not ­ob­vi­ous enough? It doesn’t strike me as in­con­ceiv­able.”

The hand­ful of con­gres­sion­al Demo­crats in at­tend­ance — House Minor­ity Lead­er Nancy Pelosi and Sens. Dick Durbin, Patty Mur­ray, and Ron Wyden — had no vis­ible re­ac­tion to the diss.

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