03/09/2015 11:03 am ET Updated Mar 09, 2015

Here's What Scalia Said About Obamacare Last Week. It's Not What He Said 3 Years Ago.

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It's going to be at least a few weeks, and probably a few months, before we know what the Supreme Court is going to do with Obamacare. But Wednesday's oral arguments in King v. Burwell have already made something very clear: Justice Antonin Scalia isn't too worried about intellectual consistency.

Among the many issues that came up Wednesday were the likely consequences if the court rules in favor of the plaintiffs, thereby prohibiting the federal government from distributing Obamacare's tax credits in two-thirds of the states. Millions of people depend on those tax credits to purchase health insurance; without the financial assistance, they'd have to give it up. And that's not all. Experts have warned that the loss of so many paying customers would disrupt whole state insurance markets, in ways that would affect even people buying insurance without federal assistance.

Congress, in theory, could avoid these problems by passing a simple, one-sentence amendment to the Affordable Care Act. The entire basis for the lawsuit is the meaning of a four-word phrase, "established by the state." And during oral arguments, Scalia suggested Congress would do just that, or at least something like it:

What about -- what about Congress? You really think Congress is just going to sit there while -- while all of the 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 -- that takes care of the problem. It happens all the time. Why is that not going to happen here?

Of course, Congress can't pass anything more than emergency stop-gap measures these days, as the recent showdown over Department of Homeland Security funding demonstrated. And while Republicans in the House have voted to repeal Obamacare more than 50 times, they've yet to get a replacement bill onto the floor, let alone vote for one -- even though they've promised to produce such legislation repeatedly.

Everybody knows this. The courtroom burst into laughter when Solicitor General Donald Verrilli responded to Scalia by asking, incredulously, "This Congress, your honor?"

Listen to audio of the exchange here:

And it turns out Scalia knows it too -- or, at least, he did three years ago, when the court heard arguments in National Federation of Independent Business v. Sebelius.

That was the case challenging the constitutionality of the individual mandate. One issue the justices considered in that dispute was whether, in principle, they could invalidate the mandate but leave the rest of the law in place. Scalia suggested that such a move wouldn't make sense, because it would undermine the law's function and Congress, beset by paralysis, would be unable to act in response.

Here's what he said back then, addressing an attorney who was proposing that only the mandate be struck down:

Let's consider how -- how your approach, severing as little as possible, thereby increases the deference that we're showing to Congress. It seems to me it puts Congress in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can't repeal the rest of the Act because you're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new Act. You got to get 60 votes to repeal it. So, the rest of the Act is going to be the law.

The circumstances are not identical and oral arguments can be famously misleading indicators of how justices will actually vote. But you have to engage in some fine hair-splitting to show how Scalia might logically expect Congress to act now but doubt its ability to act three years ago. And while many principals in this saga have engaged in "motivated reasoning" -- that is, starting with a preferred political outcome, then crafting logic to fit it -- Scalia is becoming famous for it.

Back in the individual mandate case, one of the strongest legal defenses for the law was based on an opinion Scalia himself had written, in a case called Gonzales v. Raich. Scalia barely noticed and joined an opinion declaring the mandate unconstitutional. In this latest case against Obamacare, the government can once again point to a Scalia opinion to justify its position: A majority decision, which he wrote just five months ago, arguing that judges must interpret specific words in a statute "in their context and with a view to their place in the overall statutory scheme." Yet there was Scalia on Wednesday, attacking the government and showing little to no interest in the context around "established by the State."

To be clear, the Supreme Court doesn't have to consider consequences of a decision when making its decision. But it's likely that Chief Justice John Roberts and maybe even Justice Anthony Kennedy would hesitate to issue a ruling that would have a devastating effect on millions of people.

That may be why Justice Samuel Alito, during oral arguments, floated the idea of a "stay" that would delay a ruling's impact and give Congress time to act. Alito may be trying to ease any anxiety Roberts and Kennedy might have. Scalia's professions of newfound faith in Congress could be an attempt to accomplish the same thing, even though he knows, as well as anybody, the most likely outcome of a decision is more congressional inaction.



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