At yesterday’s oral argument in King v. Burwell, the solicitor general made a surprisingly partisan quip about Congress. It caught many commenters’ attention, including law professors Michael Greve and Josh Blackman. As the transcript reads:
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 —
(Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.
GENERAL VERRILLI: Well, this Congress, Your Honor, I — I —
(Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.
That’s quite a slap at Congress—the notion that the House and Senate are completely irrelevant at this point, completely incapable of legislating in the aftermath of King.
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