Justice accuses Sen. Reid of bribery for ‘Cornhusker Kickback’ in original healthcare legislation

Supreme Court Justice Antonin Scalia drew laughter during oral arguments Wednesday when he implied that Senate Majority Leader Harry Reid
(D-Nev.) had bribed a colleague to ensure the passage of the healthcare
overhaul.

Scalia, one of the high court’s most conservative members, referenced a deal between Reid and Sen. Ben Nelson (D-Neb.), which was in an initial draft of the healthcare package and gave Nebraska $100 million in special Medicaid assistance in exchange for Nelson’s vote.

{mosads}The provision was derided by Republicans and had become known as the “Cornhusker Kickback” by mid-March 2010, when drafts revealed it was no longer in the bill.

Scalia used the phrase Wednesday to impugn Nelson under what he described as the Constitution’s prohibition of “venality,” or susceptibility to bribes, and to question whether the entire healthcare law would become null without its central provision — the individual mandate to buy health insurance. 

“[I]f we struck down nothing in this legislation but the … ‘Cornhusker Kickback,’ OK? We find that to violate the constitutional proscription of venality, OK?” Scalia said, eliciting chuckles from the audience.

“When we strike [the ‘Cornhusker Kickback’] down, it’s clear that Congress would not have passed [the bill] 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,” he said.

Paul Clement, an attorney arguing against the healthcare law, answered that the law could indeed fall in that case because “it’s congressional intent that governs.”

According to the Washington Examiner, Clement went on to make a parallel argument — that without the individual mandate, the entire law would fall because it never would have passed without that provision.

The Justices seemed divided during Wednesday’s arguments over whether to strike down the entire healthcare law if they find that its individual mandate is unconstitutional.

The court’s conservative members, including possible swing vote Justice Anthony Kennedy, leaned toward invalidating the whole law, while the liberal justices said the court should leave it to Congress to determine how much of the law depends on the mandate.