WASHINGTON — The infamous "Cornhusker kickback" was the subject of so much controversy when Congress passed the health care law, it was only fitting that it receive a mention this week during Supreme Court arguments.
The court was in the middle of weighing whether it must toss out the entire health care law if justices find that one portion is unconstitutional — say, the mandate that every American obtain health insurance.
Those challenging the law argue that if that mandate is struck, everything else must go as well.
Justice Antonin Scalia was exploring the issue Wednesday morning with Paul Clement, the attorney arguing against the law.
"That would mean that if we struck down nothing in this legislation but the — what's it called, the 'Cornhusker kickback.' OK, we find that to violate the constitutional proscription of venality, OK?" Scalia said, provoking laughter in the room. "When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate.
"And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right."
Clement responded: "Well, Justice Scalia, I think it can be, which is the basic proposition, that it's congressional intent that governs."
Cornhusker kickback is the catchy moniker that Republicans derisively slapped on a special Medicaid exemption for Nebraska.
Senate Majority Leader Harry Reid, D-Nev., included the exemption in the health care law as he was seeking support from Sen. Ben Nelson.
Nelson, who provided the key 60th vote for the health care law in the Senate, said repeatedly that the Nebraska exemption was nothing more than a placeholder intended to offer protection to all states.
And while Scalia apparently seemed to think the Nebraska exemption was still part of the law, that's not actually the case.
It became law only briefly before Congress eliminated it and replaced with additional funding for all states. — Joseph Morton