Does Antonin Scalia Know What's in the Affordable Care Law?

Reporting on Politics and Policy.
March 28 2012 2:24 PM

Does Antonin Scalia Know What's in the Affordable Care Law?

There was in a strange moment in today's severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.

"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. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right."

Advertisement

The deal that Scalia was referring to -- legendary in conservative anti-Obamacare circles -- was not a classic "kickback." Nelson negotiated for indefinite, unending Medicaid funding for his state. That ended up as part of the bill that initially passed the U.S. Senate on a 60-40 vote.

Here's the rub: It's not actually part of the law. Democrats removed the Nebraska deal in the final tortured negotiations that passed the PPACA in the House. When it got to the Senate again, Democrats only needed 51 votes to pass it; Nelson, who'd gotten the bad press from the deal AND nothing to show for it, glumly voted no.

Here's another rub. In early coverage of Scalia's zinger, the fate of the "kickback" is totally left out. It might be because no one in the room pointed out the mistake. Or it might be that Scalia, and lots of other people, have internalized the conservative case against the law.

David Weigel, a former Slate politics reporter, is a reporter for Bloomberg Politics

TODAY IN SLATE

Politics

Meet the New Bosses

How the Republicans would run the Senate.

It Is Very, Very Stupid to Compare Hope Solo to Ray Rice

The U.S. Is So, So Far Behind Europe on Clean Energy

Even if You Don’t Like Batman, You Might Like Gotham

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

A Woman Who Escaped the Extreme Babymaking Christian Fundamentalism of Quiverfull

Nicolas Sarkozy, Thrice Married, Says Gay Marriage Humiliates the Family

  News & Politics
Over There
Sept. 22 2014 1:29 PM “That’s Called Jim Crow” Philip Gourevitch on America’s hypocritical interventions in Africa.
  Business
Moneybox
Sept. 22 2014 1:37 PM Subprime Loans Are Back! And believe it or not, that’s a good thing.
  Life
Dear Prudence
Sept. 22 2014 3:33 PM Killing With Kindness My in-laws want to throw me a get-well-from-cancer bash. There’s no way I can go.
  Double X
Doublex
Sept. 22 2014 4:06 PM No, Women’s Soccer Does Not Have a Domestic Violence Problem Or, why it is very, very stupid to compare Hope Solo to Ray Rice.
  Slate Plus
Slate Plus
Sept. 22 2014 1:52 PM Tell Us What You Think About Slate Plus Help us improve our new membership program.
  Arts
Brow Beat
Sept. 22 2014 3:16 PM Watch the Best Part of Beyoncé and Jay Z’s On the Run Tour
  Technology
Future Tense
Sept. 22 2014 12:14 PM Family Court Rules That You Can Serve Someone With Legal Papers Over Facebook
  Health & Science
Science
Sept. 22 2014 12:15 PM The Changing Face of Climate Change Will the leaders of the People’s Climate March now lead the movement?
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.