During oral arguments this morning in the King v. Burwell case, Justice Antonin Scalia heard Solicitor General Don Verrilli warn of dire consequences if the Supreme Court strips millions of families of their health care insurance subsides. The Republican jurist just didn't believe the consequences would be ignored by the people's representatives.
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?
The room, not surprisingly, erupted in laughter. Congratulations, Congress, you've literally sunk to the level of a punch line.
But more to the point, Scalia wasn't kidding. "I don't care what Congress you're talking about," he added. "If the consequences are as disastrous as you say, so many million people without insurance and whatnot -- yes, I think this Congress would act."
On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn't even exist because Congress would have clarified the ACA structure years ago.
And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they're receiving now.
But that's all the more reason to understand exactly why Scalia is wrong.