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David Weigel and Steve Benen, along with many others, chose to criticize Supreme Court Justice Antonin Scalia for allegedly not knowing what was in the Patient Protection and Affordable Care Act, because Scalia brought up the “Cornhusker Kickback.”
From Steve Benen:
In this case, Scalia doesn’t seem to realize that the so-called “Cornhusker kickback” wasn’t included in the Affordable Care Act; it was taken out before passage. Scalia probably heard something about it on Fox News, assumed it was true, and internalized his party’s talking points. More than two years later, the conservative justice is still parroting a claim that has no basis in fact — indeed, he’s practically boasting about it during Supreme Court oral arguments.
From David Weigel:
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 is the actual rub. The Cornhusker Kickback was part of the PPACA which was signed into law.
After the uproar about this provision it was eventually repealed by a totally different law, the Health Care and Education Reconciliation Act of 2010. In fact Ben Nelson did vote against the repeal of the Cornhusker Kickback.
While these two laws were passed rather close together and are often thought as being part of the same health care debate, they are legally two different acts. The Supreme Court was hearing arguments about the PPACA, which did contain the Cornhusker Kickback, although that provision was repealed before the case against the PPACA got to the Supreme Court. The important thing is that it was part of the PPACA when it was signed into law.
Benen and Weigel are wrong about the facts and Scalia is technically right.
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I can’t believe he could be bothered to read that far.
Fucking asshole.
We all know Scalia is always right. Always correct is another matter.
Uh, if the subsequent statute repealed the provision, every court in the country would take judicial notice of that fact. They are not required to sit there deliberately ignorant of the state of the law. first year law students know this. Scalia was being obtuse and just repeating a GOP talking point.
His argument is that every provision in the was needed to get the votes for its passage and this was one of them. The fact the the provision was later repealed doesn’t change the facts.
I think his argument is stupid but the facts behind it were not wrong.
Jon, I think most people have forgotten that Obamacare is actually composed of two bills, the Baucus bill and the follow up reconciliation bill. No one made the point at oral arguments that striking down the Baucus bill would leave the reconciliation bill intact.
http://en.wikipedia.org/wiki/Health_Care_and_Education_Reconciliation_Act_of_2010
If the reconciliation bill is tossed, among other things, the reformed student loan program goes out the window as well. And yet if the bill isn’t tossed, I don’t know how court will interpret tax increases and legal requirements (the $695 mandate penalty is actually from the reconciliation) predicated on another law— which no longer exists. I’d argue this is kind of big deal and yet Obama’s team dropped the ball by not stressing (or even making) this point yesterday.
Scalia can quote a 1788 blogger and explain why the blog has the effect of law because of “original intent”.
Does anyone really think that a repeal of a provision of a law will stop him from using it as a reason to go his way in a repeal of the total law decision?
My understanding at the time of the PPACA was that the Cornhusker kickback was broadened to all states. Curious if you have the section of the bill that limits it to Nebraska.
There seems to have been some changes put in sometime between passage and registration as law that were not reported. For example, the explicit severability clause, which was legislative boilerplate through passage seems to have been removed somewhere along the way. Wondering if someone pulled a Phil Gramm move on the bill.