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9 Nov, 5 tweets, 3 min read
Tomorrow, SCOTUS will hear oral argument in California v. Texas—the latest challenge to the Affordable Care Act. There are three questions at issue. We've put together a symposium addressing each one.

You can access it here: scotusblog.com/category/speci…
Before deciding the legal merits of the challenge to the health law, SCOTUS must determine if it can even reach those questions. Do the challengers have standing to sue?

Katie Keith says no: scotusblog.com/2020/11/sympos…

@JoshMBlackman & @ishapiro say yes: scotusblog.com/2020/11/sympos…
Next question: Is the ACA's "individual mandate" (which states that most Americans must have insurance) constitutional? In 2012, SCOTUS upheld the mandate under Congress' taxing power, but Congress reduced the tax penalty to $0 in 2017. That change gave rise to the current case.
Brietta Clark argues that the individual mandate remains valid, even though it no longer contains a tax penalty: scotusblog.com/2020/11/sympos…

Matthew Forys says that, without the penalty, the mandate is merely an unconstitutional command to purchase insurance: scotusblog.com/2020/11/sympos…
Finally, if the individual mandate is unconstitutional, can it be severed from the ACA without striking down the entire law?

@Pratik_A_Shah says the severability question is an easy one & the answer is yes: scotusblog.com/2020/11/sympos…

Andy Schlafly says no: scotusblog.com/2020/11/sympos…

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More from @SCOTUSblog

SCOTUSblog Profile picture
10 Nov
Oral argument in California v. Texas -- the constitutional challenge to the ACA -- is about to begin. It's set for 80 minutes of argument time (but likely will go longer). You can listen live on C-SPAN: c-span.org/video/?471185-….

Follow this thread for live updates.
Arguing first is Michael Mongan, the solicitor general of California (which, along with other blue states, is defending the ACA). He says that, even if the court holds the mandate unconstitutional, Congress' intent is that the rest of the law should remain intact.
Chief Justice Roberts is the first to ask questions. He starts with the issue of standing (i.e., whether the challengers have the legal right to bring this suit). If the court finds no standing, it would avoid having to reach merits of the challenge.
Read 39 tweets
SCOTUSblog Profile picture
14 Oct
So far this morning, Democrats are hammering the theme of voting rights. Both Feinstein and Leahy grill Barrett on her views on the Voting Rights Act and Shelby County v. Holder, the 2013 case in which the Supreme Court struck down part of the VRA.
Barrett's response to Sen. Leahy on the court's inability to enforce its judgments:

"The Supreme Court has no power, no force, no will, so it relies on the other branches to react to its judgments accordingly."
Under questioning from Sen. Leahy, Barrett declines to characterize the Constitution's emoluments clauses as "anti-corruption" measures. Yesterday, the Supreme Court declined to take up a lawsuit alleging that Trump is violating the foreign emoluments clause.
Read 10 tweets
SCOTUSblog Profile picture
14 Oct
There was A LOT of Supreme Court News yesterday: Trump financial records, election-related litigation, the census case, new cert grants, AND oral arguments in two cases. 😅

Let's catch you up.
Trump returned to SCOTUS Tuesday to ask the court to block a NY grand jury subpoena for his financial records. The case is back after SCOTUS ruled in July that the president wasn't absolutely immune but could make additional arguments. By @ahoweblogger scotusblog.com/2020/10/trump-…
SCOTUS handed the Trump administration a win yesterday when the court granted its request to stop the census count. The admin said it needed to discontinue the count to be able to process the census data and meet a key statutory deadline. By @jamesromoser
scotusblog.com/2020/10/suprem…
Read 4 tweets
SCOTUSblog Profile picture
13 Oct
In an exchange with Sen. Booker (D-NJ), Barrett agrees with him that there is implicit racial bias in the US criminal justice system. "It would be hard to imagine a criminal justice system as big as ours without having any implicit bias in it."
Sen. Crapo just mentioned a case from last term on severability. The case was about anti-robocall laws & was called Barr v. American Association of Political Consultants. Prof @AbbeGluck wrote about the its potential relevance to the upcoming ACA case: scotusblog.com/2020/07/a-scal…
Barrett voted in a law school moot of the upcoming ACA case last month that the individual mandate is unconstitutional but severable so the law still stands. She stressed to Sen. Crapo that the moot did not reveal her actual views and that she was not trying to signal anything.
Read 7 tweets
SCOTUSblog Profile picture
13 Oct
Chairman Lindsey Graham has gaveled the Senate Judiciary Committee into session. Each senator gets 30 min for the 1st round of questioning. There are 22 senators on SJC (12 GOP/10 Dem), so that means 11 hours minimum if they use all of their time. Every senator may not go today.
Graham asks Barrett whether she would be a female Justice Scalia and about her beliefs on Originalism. She wrote about both in the same essay for Notre Dame Law School in 2017 on whether stare decisis is compatible with Originalism.

scholarship.law.nd.edu/ndlr/vol92/iss…
Graham asks Barrett about precedent (called stare decisis) & substantive due process. She says SCOTUS has grounded certain rights not explicit in the Constitution, like the right to abortion, in substantive due process. She wrote on both topics in 2003. scholarship.law.nd.edu/law_faculty_sc…
Read 26 tweets
SCOTUSblog Profile picture
12 Oct
Chairman of the Senate Judiciary Committee Lindsey Graham (SC) gavels the room into session with some housekeeping remarks and then speaks about Justice Ruth Bader Ginsburg getting confirmed with a bipartisan vote of 96-3.
He's now introducing Amy Coney Barrett including her judicial background, clerkship experience with Justice Scalia, and academic background.

Senator Graham is not wearing a mask while speaking. Feinstein next to him also not wearing a mask. Barrett is still wearing her mask.
Graham trying to head off at the pass criticism that confirmation happening in an election year. "There's nothing unconstitutional about this process."
Read 42 tweets

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