In the
King v. Burwell Obamacare challenge arguments heard Wednesday in the Supreme Court, there was a line of argument from conservative justices Samuel Alito and Antonin Scalia that took
observers by surprise, and
led to a moment of levity in the courtroom. Together, Alito and Scalia
raised the possibility that the court could rule against the government, but mitigate any potential damage done to the millions of people immediately losing their subsidies by staying a decision until the end of the year, giving states enough time to set up exchanges or Congress enough time to legislate a fix.
JUSTICE ALITO: Would it not be possible if we were to adopt Petitioners' interpretation of the statute to stay the mandate until the end of this tax year as we have done in other cases where we have adopted an interpretation of the constitutional or a statute that would have very disruptive consequences. […]
JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. […]
GENERAL VERRILLI: Well, this Congress, Your Honor, I I
(Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically of course, theoretically they could.
JUSTICE SCALIA: I 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.
Consider that Alito's and Scalia's argument directed at just two people: John Roberts and Anthony Kennedy, who they must keep on their side to prevail in gutting this law that they hate. Here's a way for Roberts and Kennedy not to be the bad guys in taking away health insurance for millions. They would just be paving the way for the states and/or Congress to "fix" the problem, and if the states and Congress don't do that, hey, it's not SCOTUS's fault.
Whatever Scalia thinks about this Congress, getting agreement on any kind of healthcare plan out of Republicans is a pipe dream and has been for over four years, now. Likewise, the political will against the law in most Republican states is so strong, expecting them to step up to the plate and do the difficult and expansive work of setting up their own exchanges just isn't realistic.
It's possible, just possible, that Roberts and Kennedy aren't such ideologues that they don't recognize those realities. If they care. The danger is in their seeing this out Alito and Scalia are trying to give them and taking it, passing the blame buck on to others.
