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Strict Deconstructionism: Republican Legal and Political Values in 2015



My take on yesterday’s oral argument is up.

The first main point is that unlike many smart observers I’m not really much more optimistic than I was yesterday.  And second, it’s like how much more hackish could Scalia be?  And the answer is none.  None more hackish:

Particularly remarkable, however, was this exchange:

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?

VERRILLI: Well, this Congress? [laughter]

VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.

SCALIA: 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.

Scalia’s argument, of course, came straight from a land of willful fantasy. It’s tempting to dismiss Scalia’s comments as politically naïve, but I think it’s more pernicious than that. Scalia has long shown an affinity for the most witless Fox News talking points. Republicans have been making a conscious effort to reassure the court that they have a plan should the court gut the ACA. Needless to say, they don’t actually have any plan — pretending to have a plan is their only plan. Indeed, Republicans in Congress are so dysfunctional that they can barely even pretend to have a serious alternative, and any attempt to fix the law would assuredly be stillborn.

The Republican alternative should the court willfully misread the law and ruin the federally established exchanges is a con somewhat less sophisticated than selling oceanfront property in Wyoming — but it’s good enough for Scalia! That tells you all you need to know about the extent of his fidelity to judicial ideals.

There are two additional examples of hackery and cynicism I didn’t have space to get to but are also relevant:

  • There is an additional element of disingenuousness in Carvin citing the relatively low number of states that have undergone the “thankless task” of creating their own exchanges after the IRS ruled that subsidies would be universally available. One reason so many states declined to establish exchanges is that Michael Cannon spent a great deal of time flying around the country and urging states not to do so.  The architects of the suit obviously thought that even with the subsidies offered through federal changes many states would establish their own exchanges – and, indeed, even with this organized campaign 17 did. States had a reasonable opportunity to create their own exchanges and that’s all Congress wanted.  But it’s yet another new level of bad faith for the troofers to actively thwart the creation of state exchanges and then use this as a reason to wreck the federal exchanges after projecting their own views about federal power onto legislators who don’t share them.
  • Let’s consider another of Scalia’s talk radio soundbites: “This is not the most elegantly drafted statute.  It was ­­ it was pushed through on expedited procedures and didn’t have the kind of consideration by a conference committee, for example, that ­­ that statutes usually do.”  The “expedited procedures” claim is just erroneous; both the Senate and then the House passed the ACA using ordinary procedures, and then there was a set of amendments passed through reconciliation.  The implicit claim that the ACA was passed in unseemly haste is a joke to anyone who actually remembers the interminable process.   It is true that the bill did not have the usual benefit of being harmonized through a conference committee. But the reason that this didn’t happen is that the Republican minority in the Senate would not have permitted a vote on a new bill.  It’s a neat scam: A Republican minority prevents Congress from functioning properly, and then their political allies on the Supreme Court use this as an excuse to willfully misread the resulting statute, with disastrous consequences for many people.  When the same Supreme Court justice to then assert that congressional Republicans would never, ever dream of seeing large numbers of people go without health insurance it just completes the shameless hack cycle.

The grand theory of Republican politics and constitutionalism in 2015 would seem to be “stop hitting yourself.”  Stripping health insurance from millions of people based on a legal theory that would be laughed out of any courtroom not dominated by partisan Republicans is a logical endpoint.

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