Antonin Scalia: Won't Congress Fix Obamacare?

The conservative firebrand said Congress would probably act if the Supreme Court invalidates Obamacare's subsidies.

Scalia Time? The justice calls Section 5 of the Voting Rights Act is a "racial entitlement."  (The Higgs Boson Photostream/Creative Commons. Photo/Stephen Masker) (National Journal)

Supreme Court Justice Antonin Scalia seems to have faith that Congress would fix Obamacare if the Court weakens it—but not so much faith in the Congress that wrote the law in the first place.

Solicitor General Donald Verrilli, arguing on behalf of the Obama administration, warned the Court during oral arguments in King v. Burwell on Wednesday that a ruling invalidating Obamacare's insurance subsidies in most of the country would have disastrous consequences. Premiums would skyrocket, millions of people would lose their coverage, and many states' individual insurance markets could descend into chaos, he said.

But Scalia wasn't sure it would be that bad.

"What about Congress? You really think Congress is just going to sit there while ­­all of these disastrous consequences ensue?" he asked Verrilli. "I mean, how often have we come out with a decision "¦ [and] Congress adjusts—enacts a statute that ­­takes care of the problem? It happens all the time. Why is that not going to happen here?"

"This Congress, your honor?" Verrilli replied. "Of course, theoretically, they could."

Seated just a few feet away were many of the congressional committee chairmen who would have to come up with and pass such a fix, including Sens. Orrin Hatch and Lamar Alexander; and Reps. Paul Ryan and Fred Upton.

Republicans have worked hard lately to convince the public—and the Court—that they'll be ready with a fix if the justices do invalidate Obamacare's subsidies.

Policy experts largely agree that such a ruling would cause the kind of disruption Verrilli described, and some conservatives are afraid that the Court wouldn't be willing to take that risk unless it believed Congress would step in. Ryan and Hatch have both published op-eds recently saying they would propose a temporary patch allowing people to keep their coverage, perhaps even with a temporary extension of Obamacare's subsidies.

But the details of those plans are unclear—as is the political strategy for getting Republicans to agree on and pass an Obamacare "fix" that Obama could also swallow, potentially including an extension of its most expensive provision, in the middle of a presidential primary.

Still, Scalia seemed optimistic.

"I don't care what Congress you're talking about," he said in response to Verrilli. "If the consequences are as disastrous as you say, so many ... people without ­­insurance and whatnot, yes, I think this Congress would act."

But his confidence in the Congress that passed Obamacare isn't quite as strong.

Verrilli argued Wednesday that Congress could not have intended to limit the law's insurance subsidies to people in states that set up their own exchanges. Maybe Congress just wasn't very good at expressing its intent, Scalia replied.

"This is not the most elegantly drafted statute," he said. "It was ­pushed through on expedited procedures and didn't have the kind of consideration by a conference committee, for example, that ­­statutes usually do. What­­ would be so surprising if, among its other imperfections, there is the imperfection that what the states have to do is not ­obvious enough? It doesn't strike me as inconceivable."

The handful of congressional Democrats in attendance—House Minority Leader Nancy Pelosi and Sens. Dick Durbin, Patty Murray, and Ron Wyden—had no visible reaction to the diss.