Conservative Supreme Court Justice Antonin Scalia is adopting right-wing media's talking points yet again, this time implausibly claiming that the Republican-controlled “Congress would act” with an alternative if the court strikes down the Affordable Care Act's health insurance tax credits.
On March 4, the justices heard King v. Burwell, a case that could make insurance subsidies unavailable to some Americans. At issue in the suit is whether a subclause in the law that says subsidies can be disbursed through “Exchanges established by the State” prohibits the IRS from providing tax credits to consumers who bought insurance over the federal exchange. Despite the fact that experts agree that the law clearly makes the subsidies available to everyone, right-wing media have called on the Supreme Court to rule otherwise.
Health and Human Services Secretary Sylvia Burwell has repeatedly said that there is no contingency plan in the event of an adverse decision in King, and that there is no fix the administration can make to remedy the problem without inviting further legal challenges. Right-wing media jumped at Burwell's comments, criticizing the administration for not having a back-up plan while promoting a series of Republican “alternatives” should the court ultimately strike the subsidies down.
Conservative outlets like The Wall Street Journal and Fox News have done their part to push these plans by hosting numerous op-eds and segments with the authors of these questionable proposals. On the March 4 edition of Fox & Friends, Sen. Bill Cassidy (R-LA) joined hosts Steve Doocy, Brian Kilmeade, and Elisabeth Hasselbeck to promote one such alternative. After Cassidy claimed that the Obama administration has “nothing to say” to consumers who might lose their subsidies, Doocy remarked that “the administration says they don't have a plan B, but apparently the Republicans do.” National Review Online has also argued that the Republicans have a viable alternative plan, writing in a recent post that “Senate Republicans aren't leaving anything to chance” and that “there's some conservative intellectual firepower behind” their ideas.
As The Hill reported, these alternatives are “a direct appeal to the Supreme Court justices” that are “intended to make it easier for the court to strike down the subsidies, since Republicans believe the court is more likely to rule in their favor if it believes a plan is in place to limit the fallout.”
Right-wing media's push for Republican plans seems to have found at least one friendly ear at the Supreme Court. During oral arguments, U.S. Solicitor General Donald Verrilli pointed out that, without the subsidies, millions of Americans would be left without a way to purchase affordable health care. Justice Scalia responded to Verrilli by suggesting that Congress would easily fix the problem to ensure the availability of the subsidies:
Despite Scalia's apparent confidence, it is highly unlikely that this Congress would act in time to save the subsidies, if they act at all. As Talking Points Memo pointed out, “Republican congressional leaders and top committee chairmen have said they're hard at work on a contingency plan, but they don't have a bill yet, and they haven't committed to offering one by June, when a Supreme Court ruling is expected.” Vox's Ezra Klein agreed, noting that the Republican plans are “the barest possible sketch of some nascent ideas that could, one day, be used as the basis for a plan. ... They don't have a plan to fix Obamacare, and they don't have a plan to pass the plan they don't have to fix Obamacare.”
Moreover, Scalia's assumption that Congress “adjusts” Supreme Court opinions “all the time” is just plain wrong. According to election law expert Rick Hasen, “Congress very rarely overturns the Supreme Court, especially in high profile cases with great partisan salience, except in situations (unlike today) where the Congress and Presidency are all controlled by one party.”
This isn't the first time that Scalia has seemingly adopted right-wing media talking points in oral arguments. During the last Affordable Care Act challenge in 2012, Scalia claimed that upholding the law could eventually allow the federal government to force people to buy broccoli -- a talking point that got its start on Rush Limbaugh's talk show. In 2014's Hobby Lobby case, the conservative justices again adopted dubious right-wing arguments. In Justice Samuel Alito's majority opinion, he wrote that it was enough that the religious owners of Hobby Lobby “sincerely believed” that some contraception works as an “abortifacient,” even though that belief has no basis in fact.