AP Photo/Evan Vucci
Justice Antonin Scalia's dissent from the Supreme Court's recent decision on Obamacare reveals an almost touching belief that his Republican confreres are actually empirically sentient and can, if prodded, respond to reality. In that decision, which was handed down on June 24, the Court upheld the payment of federal subsidies to low-income recipients of Obamacare in states that haven't set up their own exchanges. Were the Court to strike down the subsidies, as Scalia argues it should have, states without exchanges, he writes, would surely set them up:
The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn't one expect States to react by setting up their own Exchanges? And wouldn't that outcome satisfy two of the Act's goals rather than just one: enabling the Act's reforms to work and promoting state involvement in the Act's implementation? The Court protests that the very existence of a federal fallback shows that Congress expected that some States might fail to set up their own Exchanges. So it does. It does not show, however, that Congress expected the number of recalcitrant States to be particularly large. The more accurate the Court's dire economic predictions, the smaller that number is likely to be. That reality destroys the Court's pretense that applying the law as written would imperil "the viability of the entire Affordable Care Act."
It's a lovely argument, but for the fact that there's not a shred of evidence that the Republican governors and legislators who've declined to establish exchanges so far would be willing to jettison their ideology and their right-wing supporters if the Court invalidated the federal subsidies. In the many months before yesterday's decision came down, not a single such state government developed a contingency plan for establishing an exchange. In the many months before the decision came down, Congressional Republicans failed to produce a plan for what to do about the millions of Americans who'd lose their coverage if the Court struck down the subsidies.
Scalia presumes that there exists somewhere a Republican Party that subordinates ideology to facts, and laissez-faire theories to the needs of actual human beings. But his dissent exemplifies the very kind of ideologically-driven denial that he serenely assumes doesn't exist. For the only way to read the ACA as he does requires denying the clear contextual meaning of the disputed clause and the raison d'etre for the entire act. His very dissent exhibits the same dismissal of reality that his fellow right-wingers embrace, though he fails to detect it in their actions or in his own thinking.
