Antonin Scalia’s unintentional humor

by Steve Benen

During oral arguments this morning in the King v. Burwell case, Justice Antonin Scalia heard Solicitor General Don Verrilli warn of dire consequences if the Supreme Court strips millions of families of their health care insurance subsides. The Republican jurist just didn’t believe the consequences would be ignored by the people’s representatives.

It led to an unintentionally amusing 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?

The room, not surprisingly, erupted in laughter. Congratulations, Congress, you’ve literally sunk to the level of a punch line.

But more to the point, Scalia wasn’t kidding. “I don’t care what Congress you’re talking about,” he added. “If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot – yes, I think this Congress would act.”

On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn’t even exist because Congress would have clarified the ACA structure years ago.

And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they’re receiving now.

But that’s all the more reason to understand exactly why Scalia is wrong.

Obviously, this Congress is many things, but no one can characterize the institution as sane, mature, and responsible with a straight face. Lawmakers can just barely keep the government’s lights on, and a year and a half ago, they failed to even do that.

But even putting this aside, Scalia isn’t paying close enough attention to current events. Congress’ Republican majority has said in no uncertain terms that it will, to use Scalia’s phrase, “sit there while all of these disastrous consequences ensue” and ignore Democratic pleas for a simple fix. Leading GOP lawmakers have committed to this course over and over and over again.

Not to put too fine a point on this, but Scalia believes House Republicans would “act” to rescue the Affordable Care Act despite the fact that GOP lawmakers have voted at least 56 times to repeal all or part of the reform law. To ignore these details is to stick one’s head in the sand.

The problem isn’t just that Congress is a dysfunctional mess on a historic scale, though it is; the problem is that Congress’ majority wants to watch the American health care system burn. They’re just waiting for the Supreme Court to light the match.