There was one moment in the oral arguments for King v Burwell that stood out to me. Alito and Scalia were from the beginning arguing for the plaintiffs. At one point, Alito entered into some grand apologetics for how the states themselves could fix any problems that the conservatives so want to create in the healthcare law. And then Scalia came in with a brilliant point, “What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue?” This led to a big laugh when Solicitor General of the United States, Donald Verrilli responded, “Well, this Congress, your honor?”
The point is that Alito and Scalia want to kill the law and then claim that it isn’t their fault — the legislature could fix the problem if it wanted. But the point is that the legislature doesn’t want to fix the law. It wants to kill the law, but it doesn’t have that power. And so the conservatives on the court are only too happy to help out. They already did that when they made the Medicaid expansion optional. And they think they have the final blow here. It wouldn’t be quite so bad if the conservatives on the court would just admit to the fact that they are nothing but political hacks in robes.
But notice the reasoning here. Scalia is basically demanding that Obamacare be passed twice. And he does this knowing that getting it passed once was an amazing example of legislative ballet. My understanding is that those ominous four words that this case is all about would have been changed if it hadn’t been for the fact that Teddy Kennedy died and they couldn’t make changes. So Scalia is helpfully traveling back in time and performing a filibuster to destroy the law.
I understand the annoyance of conservatives. The kind of majority that the Democrats had during the first half of 2009 was amazing. They got to do a couple of things they actually wanted. But Republicans have had the same ability in the past, but they have used it almost exclusively for evil. We Democrats haven’t spent the last three decades looking for ways to undo Reagan’s union busting. (Sadly, only too many Democrats seem to think it was great.) And no one talks about raising the top marginal tax rate back up to 75%. We move on. But that seems to be something that Republicans — and conservatives more generally — can’t do.
These are the people, after all, who still want to destroy Medicare and even Social Security. They want to take the United States back a hundred years to when the country faced a decent chance of revolution. What’s Glenn Beck’s big issue? Social Security? The income tax? No! Direct elections of Senators. That’s right: the Seventeenth Amendment in 1913. How terrible that the people actually get to elect their Senators rather than leaving it to the corrupt system of bribery in the state legislatures. So conservatives never give up. Even if we went back to John Adams’ aristocratic vision of the country, they would want to go back further. “The Magna Carta is a socialist document!”
So the people voted in a whole lot of Democrats in 2008, and regardless of how it has been spun since then, they did more or less what the people wanted. The conservatives want a do-over. Now that the political landscape is to their advantage, they want another opportunity for an Obamacare vote. And Alito and Scalia (and I assume Thomas) are eager to give them one.