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Wednesday, March 28, 2012

Did Antonin Scalia just save the Affordable Care Act ?

Scalia's conduct today (Wed) was outrageous. I'm so ignorant that I'm not even sure if it amounts to misconduct which would justify impeachment (judges don't have to break the criminal code to be impeached). I will never know, but I dearly dearly hope that Justice Kennedy is as appalled as I am. I wish I could believe that the outrageous contempt for the Constitution displayed by Scalia convinced Kennedy to uphold the mandate. That would be very silly of him, but it is clear that Supreme Court Justices are being silly.

Scalia ordered Congress and the President to change the law in this exchange

"When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied cooly: “Well, don’t obligate yourself to that."”

Among other laws, Verrelli was referring to the EMTALA which mandates emergency care until the patient is stabilized without regard for the patients ability to pay or for whether the patient could have afforded health insurance and chose not to buy it. The bill was passed by a Senate with a Republican majority and signed into law by Ronald Reagan. Today, Scalia ordered Reagan to not do that. Note he didn't argue that EMTALA is unconstitutional. He demanded that it not be enacted, because he generally disapproves of it. Of course he really denied that it has been enacted, because to him, the constitution and existing laws are whatever he wants them to be.

Scalia "admitted that he'd like to see the whole law fall if the mandate is ruled out of bounds." Shockingly, he argued that the court should repeal the whole law and not rewrite it, because rewriting it would be too much work

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to -- to give this function to our law clerks?

Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?...

JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.


MR. KNEEDLER: I -- I think -- I think that -

JUSTICE SCALIA: I don't care whether it's easy for my clerks. I care whether it's easy for me. (Laughter.)

Scalia made a materially false statement of fact from the bench claiming that the bill wouldn't have passed without the Cornhusker kickback

"If we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?" asked Scalia, talking to Paul Clement. "When we strike that down, it's clear that Congress would not have passed it without that.

In fact the bill did pass without the cornhusker kickback and does not include any special treatment for Nebraska.

Scalia displayed total disinterest in fact and law. His view clearly is that Supreme Court justices can do whatever they want.

I really wish I could believe that Roberts and Kennedy find this attitude so distasteful that they are reluctant to agree with Scalia even in part.

I'm not totally joking when I consider that this is just barely possible.

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