Last week in oral arguments on
King v. Burwell, the latest Obamacare challenge, Justice Antonin Scalia
suggested that a ruling for the plaintiffs wouldn't be such a horrible thing, because surely Congress would come back and fix the law. That provided the biggest laugh of the day in the courtroom, but also highlighted Scalia's tendency to reverse his own, previous arguments when the politics suit.
Jonathan Cohn takes us back to the original challenge to the law, National Federation of Independent Business v. Sebelius, when Scalia was well aware of congressional gridlock and the limits of what that body could be expected to do.
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.
Scalia, of course, was wanting to strike down the entire law and knew that Congress was too divided to pass anything. And that was the 2012 Congress. The 2015 edition is even worse, as the last two weeks of turmoil over funding Homeland Security proved. But now, he wants the possible defectors Anthony Kennedy and John Roberts to believe Congress will miraculously get its act together and save the country from chaos. Can he believe anything that comes out of his own mouth?