Thread by @ZoeTillman

If you, like me, were eagerly waiting for the 5th Circuit to post the recording of arguments today in the Obamacare case because, sadly, you did not go to New Orleans, it's up now: ca5.uscourts.gov/OralArgRecordi…

Here's where things stand in the Obamacare case:
- A district judge in Texas ruled in December that the individual mandate was unconstitutional and couldn't be severed from the law, so the whole thing had to go buzzfeednews.com/article/paulmc…

- DOJ originally argued that the individual mandate + pre-existing conditions provisions had to rise or fall together, but could be severed from the rest of the law. Later, they changed course, joining Texas and Repub AGs in arguing the whole thing had to go

- Going into the 5th Circuit, there's disagreement about who has standing, but everyone seems to agree the 5th Circuit still has jurisdiction to hear the case because, at a minimum, the US will continue to enforce the law barring a court order

Okay, will now attempt to summarize what went down during arguments today (bear with me as a I tweet while listening to the nearly two-hour recording):

Arguments began with Sam Siegel, arguing for Dem state AGs. They're arguing that now that there is no tax penalty for failing to have health insurance, per 2017 action by Congress, the individual mandate can't be unconstitutional because it's not a requirement anymore

A skeptical Judge Jennifer Elrod, referring to the language of the individual mandate, asked Siegel: "Why is a command not a command?" And, she continued, if SCOTUS previously upheld the law as a tax, why wasn't it unconstitutional now that there was no tax?

Siegel repeated that the mandate should be understood as "precatory" — that is, expressing encouragement or a wish but not creating a legal obligation. He also cited 5th Circuit case law saying there didn't need to be revenue at all times for something to be upheld as a tax

Besides the constitutionality of the individual mandate, a key issue here is whether the mandate can be severed from the rest of the law. That is, if the 5th Circuit agrees the mandate is unconstitutional, do they have to toss out the whole law with it

Siegel argued that when Congress got rid of the tax penalty in 2017 but left the rest of the law intact, Congress was expressing that it believed the mandate *could* be severed. Elrod and Judge Kurt Engelhardt questioned how they could know what Congress meant in doing that

Elrod wondered if it wasn't possible that some lawmakers thought the individual mandate couldn't be severed, so they voted for the $0 tax with the goal of getting rid of the ACA. Siegel pointed to members who explicitly said they didn't want to get rid of other parts of the law

Engelhardt said he was "not a fan" of relying on quotes from elected officials, but he said that since Siegel opened the door, where were quotes from members who voted for the ACA in 2010 who then said, But actually the mandate wasn't really a mandate

Siegel said he wasn't aware of such quotes, but said it didn't matter either way what members said on any of this — the analysis could start and end with the text of what Congress actually did in 2017, which was get rid of the tax penalty but leave other provisions intact

Next is Douglas Letter, GC to the House of Reps. He says that when SCOTUS upheld the ACA in 2012, it interpreted the law as giving a choice: Have health insurance, or pay a tax. Now, he says, there's still a choice: Have insurance or pay no tax – "shall" does not mean "must"

Letter's point goes to the argument that Siegel made earlier that the individual mandate can't be unconstitutional if it doesn't require people to do something

Resuming this thread on today's arguments in the Obamacare case before the 5th Circuit, following a break to absorb way too much other breaking legal news (and to make dinner, if I'm being honest)

Letter argued that SCOTUS has made clear that when it comes to deciding whether provisions of a law are severable, courts must uphold whatever can stand on their own, and the burden is on the other side to show that Congress wanted the entire law tossed out

Letter argued the court doesn't need to reach the Q of whether the House has standing, but he and Engelhardt also sparred a bit over how much this SCOTUS opinion matters re: the standing of the Va. House of Delegates in a gerrymandering case: supremecourt.gov/opinions/18pdf…

Up next: Texas SG Kyle Hawkins. He argues the Obama admin's position was the indivdual mandate couldn't be severed from the rest of the law, and that even after the 2017 change to get rid of the tax penalty, it still amounts to a command to buy insurance and is unconstitutional

Elrod asks Hawkins to respond to the arg that it's absurd to say Congress didn't intend the individual mandate to be severable from something like restaurant calorie guidelines. Hawkins says it's not his place to psycoanalyaze Congress, it's about what the text of the ACA says

Hawkins fielded a few Qs about what happens if the lower court judge is affirmed (aka the ruling that the individual mandate is unconstitutional and the whole ACA has to go) -- Judge Reed O'Connor didn't issue an injunction, and Hawkins said it would depend on what the feds do

Up next in the 5th Circuit: August Flentje for DOJ. Elrod presses him on what exactly will happen on the ground if the lower court is affirmed, and Flentje demurs, repeatedly saying it's "complicated" and doesn't need to be resolved now

Flentje says that the govt's legal position is that the individual mandate isn't severable from the rest of the law, but the final judgment could be more narrowly tailored to only address provisions that cause an injury to Texas and the other plaintiff states

Final thing I'll note, from rebuttals. Engelhardt kept stressing this was a job for Congress, and questioned why the courts should be the "taxidermist" for Congress' "big game" legislative accomplishments. Letter said SCOTUS clearly said courts could do severability analysis

There are a lot of ways this could go. The panel didn't seem too concerned about standing/its jurisdiction, but you never know. Judges Elrod and Engelhardt asked Qs (the third member, Judge Carolyn Dineen King, asked no Qs) skeptical of the individual mandate's constitutionality

The judges seemed a bit unsettled with the lack of clarity on what happens if there's a final judgment that the individual mandate is unconstitutional and can't be severed from the rest of the law. At the very end, Elrod noted it was a "very complex case." Stay tuned.