One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.
We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.
JUSTICE SCALIA: What about what about Congress? You really think Congress is just going to sit there while while all of these disastrous consequences ensue.
I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that that takes care of the problem. It happens all the time. Why is that not going to happen here?
GENERAL VERRILLI: Well, this Congress, Your Honor, I I
You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.
Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.
After the laughter, Verrilli dug his hole deeper.
GENERAL VERRILLI: You know, I mean, of course, theoretically of course, theoretically they could.
This was also said with a slight chuckle.
Justice Scalia, who seemed visibly offended by this comment, replied sharply.
JUSTICE SCALIA: I I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without without insurance and whatnot, yes, I think this Congress would act.
I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.