That Time “Scalia kidded Emanuel about the apparent collapse of Obamacare”

January 9th, 2015

In Steven Brill’s new book, America’s Bitter Pill, about Obamacare, we get this bizarre and unsourced anecdote that is almost too good to be true.

But by January 22 [2010] , there was hope in the air in some quarters. That night Zeke Emanuel was seated at a dinner next to Supreme Court justice Antonin Scalia. The conservative Scalia kidded Emanuel about the apparent collapse of Obamacare. Zeke offered to bet him that they would get Obama’s reform package through, somehow.

Can this possibly be true? By what of background, on January 19, 2010, Scott Brown beat Martha Coakley in the Massachusetts Special Election, giving the Republicans 41 votes, and enough to break a filibuster. It was at this time the Democrats were weighing whether or not to go ahead allowing the House to vote on the Senate Bill, or using “Deem and Pass,” or the budget reconciliation process, or even abandoning the whole endeavor.

Scalia, if this story is to be believed, was tweaking Zeke Emanuel, along with Gruber an architect of Obamacare, about the law’s “apparent collapse.”

Beyond this anecdote, the book doesn’t offer many insights about the Supreme Court litigation (what interests me most).

One quasi-litigation related issue is this discussion about how no one wanted to frame the mandate as a tax:

Yet Bauer, taking the view that most legal academics had already espoused, said he was confident the courts would not interfere with Congress’s judgment that this was a penalty necessary to regulate and improve the health insurance market, which, of course, was commerce. “We think we’re in a strong position,” Bauer reported, according to notes of the meeting taken by one of the participants. Unmentioned in the discussion (although it was always mentioned in the government’s briefs) was that had Congress called the penalty a tax, there would have been no case at all. The Constitution gave broad taxing power to Congress. And the nation’s tax collector, the IRS, had been charged under Obamacare with collecting what anyone who ignored the mandate owed. Yet no politician on Capitol Hill or in the White House wanted to be associated with raising taxes if he or she could avoid it. Many, like David Axelrod and Charles Schumer, were wary of the penalty as it was.

Months before, in the early stages of drafting the bill, someone on the Finance Committee staff had mentioned the possibility of calling it a tax because he had heard a Republican staffer say something about the Commerce Clause. However, he was quickly shot down. The issue hadn’t come up since— until the lawsuits started flying. Still, Bauer did not mention the possibility of calling the penalty a tax as a defense. He was confident about the Commerce Clause. Insurance was commerce , and the mandate was simply a necessary way to regulate that commerce by strengthening the insurance market.

And apparently one member of “Obama’s political team” told a staffer that “the person in charge of Obamacare is John Roberts.”

In a third case, a White House staffer told me that a member of Obama’s political team had said that there was no need to rush anything out the door, though he rationalized it by explaining that for now “the person in charge of Obamacare is John Roberts.” He was referring to the chief justice of the United States and the fact that the constitutionality of Obamacare was on its way to being argued before the Supreme Court in late March 2012.

Brill, Steven (2015-01-05). America’s Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System (Kindle Locations 3868-3871). Random House Publishing Group. Kindle Edition.

Double hearsay!

I also found interesting this quotation from the President, which Brill secured in a Q&A is very revealing:

Keep in mind, not only did the ACA become law, it was upheld by the Supreme Court in 2012, and, in the same year, voters rejected the candidate who promised to repeal it. Despite all that, you’ve seen a sustained effort to sabotage the law at every turn— from fifty-something repeal votes to efforts aimed at defunding its implementation, to lawsuits. This from a party that’s typically opposed to frivolous lawsuits.

To be exact, Romney did not say he would repeal the ACA, and got mad at Paul Ryan when he suggested that. Romney also invented Romneycare, the godfather of Obamcare, designed by Jonathan Gruber. As I explain in my book, the GOP ran perhaps the worst conceivable candidate on the issue of Obamacare in 2012. And he lost.

He added:

But it should be pretty clear by now that I didn’t do this because it was good politics. I did it because I believed it was good for the country. I did it because I believed it was good for the American people.

This was almost verbatim the message he gave at the Capitol Visitor Center to House Democrats the day before the House voted on the ACA.

The best question was the one not answered:

QUESTION 11 How would you explain to a sixth or seventh grade class the process that led to the passage of Obamacare— the negotiations with the various industry sectors, the lack of bipartisanship, the sheer complexity and length of the statute?


Declined to answer.