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After the uproar about this provision it was eventually repealed by a totally different law, the Health Care and Education Reconciliation Act of 2010.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Court was hearing arguments about the PPACA, which did contain the Cornhusker Kickback, although that provision was repealed before the case against the PPACA got to the Supreme Court.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.