Scalia v. Scalia

Like many people, I was highly critical of Antonin Scalia’s assertion that Congress would not allow a majority of the country’s health insurance markets to collect, based on its complete alienation from even the most basic facts of American politics as it is actually practiced in 2015.  But don’t take it from me!  A Supreme Court justice implicitly made a similar critique in 2012:

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.

I presumably don’t need to tell you who asked that question.  The difference is that in 2012 Scalia had to argue that the mandate was so essential to the operation of the ACA that it couldn’t be severed from the rest of the statute, so it was in his ideological interest to tell the truth: namely, that if the mandate was struck down Congress was not going to be able to fix the statute, and without a fix the three-legged stool would collapse.  But now the truth is inconvenient, so Scalia has to “forget” that if the Court wrecks the exchanges Congress isn’t going to do anything about it.

And as you may remember, Scalia’s partisan hackery has another layer to it.  The argument Scalia made in 2012 also required him to effectively repudiate the expansive interpretation of the Necessary and Proper clause he had invoked to justify joining the majority in Raich.   Scalia had to simultaneously argue that the mandate was so essential to the operation of the statute that it couldn’t be severed if it was found unconstitutional, and yet so inessential that it was not authorized under McCulloch.  Scalia’s ad hoc war on the ACA is causing him to ignore principles he had long advocated, and his vote to inevitable vote reverse King v. Burwell will also contradict things he has long argued about statutory construction and interpretive law.

None of this is terribly unusual; I hope we’re all legal realists here.  But it makes Scalia’s relentless promotion of himself as America’s Last Honest Judge particularly intolerable.  In his votes, Alito is an even more consistent Republican party-liner, but at least he’s not nearly as pompous about it.