At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.
This had more significance than it first appeared.
Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”
That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.
Whereupon this happened:
JUSTICE 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?
GENERAL VERRILLI: Well, this Congress, Your Honor, I — I —
That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.
I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.
If so, Congressional Republicans have perhaps endeavored to play their own part in this little dance. They, too, want to appear eager to step in to help anyone hurt by an anti-ACA ruling. In a remarkable display of fortuitous timing, a group of influential House Republicans produced a Wall Street Journal piece vowing a contingency plan for millions who might lose insurance, only days before oral arguments, and several Senate Republicans floated their own plan in an article in the Washington Post.
Both plans were devoid of specifics. And what’s more, during oral arguments, the idea (floated by Scalia) that Congress might provide such a contingency plan was basically laughed out of the Court. Understandably so: No one who watched the chaos around Homeland Security funding could possibly imagine Congress producing any such plan.
Meanwhile, Alito’s suggestion — that any ruling nixing subsidies could be delayed until the end of the year — seemed designed to sound like a reasonable compromise that might allow public officials time to come up with a contingency plan.
But here’s the thing: It seems likely that it will only get harder later this year — not easier — for Republicans to fulfill any promise of a backup plan, either on the state or federal level. By then the 2016 GOP presidential primary will be in full swing, and continued Total War resistance to Obamacare — in the form of opposition to any fix that Obama and Democrats will be demanding — could very well emerge as a conservative litmus test. It’s hard to see GOP state lawmakers coming together to create exchanges in many states, and it’s even harder to see consensus forming behind a contingency plan among Congressional Republicans. Indeed, Ted Cruz — who is expected to run for president — is already insisting that any “alternative” in the wake of a Court decision against the ACA must repeal most of the law, the subsidies included.
It was a nice try by the conservative justices, and perhaps it was even meant in all sincerity, but laughter was the appropriate response.