Thread by @johnkruzel

⚖️🏥 Let's do a MEGATHREAD while we wait for arguments to begin in the big GOP challenge to ObamaCare at SCOTUS, shall we? (you can listen to it on CSPAN at 10am, fyi) (1/x)

Three issues:

(1) standing,

(2) did the '17 Trump tax bill, which zeroed out the tax penalty for not buying health insurance, render the individual insurance mandate unconstitutional?

(3) if the individual mandate IS unconstitutional, must the entire ACA be struck down?(2/x

Let's deal with those in turn

(1) Standing — This is a question of whether a plaintiff has the right to sue. Among the various limits to this right is the Constitution's requirement that courts only hear "cases or controversies." More on that here—> law.cornell.edu/wex/standing

(2) did the '17 Trump tax bill render the individual insurance mandate unconstitutional?

Plaintiffs: Yes because if the provision does not generate government revenue then it is an unconstitutional exercise of Congress' taxing power

Defendants: WRONG! It only needs the *potential* to generate revenue (to this point, some have theorized that House Dems/Biden may try to render this case moot by reinstating a tax. Some argue that even a nominal tax of $0.01 would defeat plaintiffs' argument here)

But let's say the court finds the mandate IS unconstitutional—can't the justices just lop off that one part and let the rest of the law survive?

Plaintiffs: NO! Congress meant for the mandate to be mutually reinforcing of the other parts of the law. You get rid of the mandate...

...and the whole thing collapses like a house of cards (not to be confused with House of Cards, starring Kevin Spacey, which collapsed in season 4)

Defendants: Psssshhhhhhhhh. Get real. Courts don't like to cancel more legislation than necessary—and they need go no further here

OK, argument about to start. Watch this space for more coverage TK

Calif AG (defending ACA): Hits the point that there's a presumption in favor of severability (i.e., cut off only the mandate if you must cut anything). Many legal experts think the court will sever here when they decide the case likely in June

CJ Roberts is asking about standing. Trying to determine the extent to which the plaintiffs are injured by the hollowed-out tax penalty

J Thomas: First question is about standing—probing the contours of what constitutes an injury

J Breyer: Asks about the theory of standing being advanced by the Justice Department, on behalf of the Trump admin, which wants the whole ACA to be struck down

J Alito: Asks why the ACA's change to the formula for calculating Medicaid eligibility does not harm Texas, if the new formula has, as Tx says, "greatly increased the number of persons on Medicaid in Texas"

J Sotomayor: Throws the Calif SG (not the AG, as I said above) a bit of a lifeline to get out of Alito's line of questioning about standing -- "if they have claims challenging the provisions that Justice Alito asked about, they should have brought that challenge...

.... not a challenge based on the individual mandate, correct?"

Calif SG: "That's exactly right"

J Kagan: Circles back to Alito's Q about Texas' alleged injury through more people availing themselves of health care, incl Medicaid, because of the law's very existence

J Gorsuch: Does some back-and-forth with Calif SG re: drawing lines about standing and potential penalties (even civil) for non-compliance with the zeroed-out tax penalty

~20 mins in and all we've heard so far are questions about STANDING

Have not yet addressed constitutionality of indiv mandate absent the tax penalty or severability

J Kavanaugh: STANDING Q. Hypo about requiring home owners to fly American flags outside their home (?)

If you're into weird law hypos (I am. Hell, who isn't?) J Breyer is the all time 🐐

Hope we get some today, stay tuned

J Barrett: Asking atty to distinguish between—and describe broader significance of—Congress' choice to zero out rather than repeal the mandate

Atty: "...Perhaps that would change the analysis. But if we get to the merits...." (he is ready to get to the merits)

Calif SG wrapping up now. Unless I missed something, he ONLY got questions on STANDING

Don Verrilli up now

CJ Roberts: Sounds like a severability Q -- "Eight years ago those defending the mandate emphasized that it was the key to the whole act"

"Did we spent spent all that time talking about broccoli for nothing?" 🥦 (a Scalia deep cut)

Verrilli arguing for severability: "It's turned out that the carrots work without the stick"

J Thomas: Trying to lead Verrilli down a treacherous path re: severability:

"Could you explain why that penalty provision was so critical to the centrality of this provision?"

Verrilli: It doesn't make sense that Congress "preferred to bring the whole ACA crashing down" if mandate eliminated

J Breyer was in the middle of asking a severability Q--then ran into apparent tech difficulties. Now onto Alito

Alito now going at legislative intent from a different angle. He suggests that some members of Congress in 2017 (read: Republicans) who voted for the Trump tax cut and its zeroing out of the mandate "may have done so precisely because they want it the whole thing to fall"

J Kagan and Verrilli now in a back-and-forth over *which* Congress' intent should carry the day: the 2010 Congress, which included the mandate in the law, or the 2017 Congress, which zeroed out its associated tax penalty

J Gorsuch: Asking (what sounds to be) like the first Q about the constitutional validity of the mandate in light of the 2017 tax bill

J Gorsuch: Wants to make sure Verrilli is not arguing the mandate is supported by the Commerce Clause

Verrilli says he is NOT making that argument, precisely because of court's holding in NFIB v. Sebelius (2012)

Verrilli is, however, making a case that the mandate has support from the Necessary and Proper Clause, he says

J Barrett: Picking up on Gorsuch's question re: Commerce Clause (conservatives generally disfavor a broad reading of this power)

Now onto Texas SG Kyle Hawkins

Wow—CJ Roberts expressing skepticism in first Q to Texas' SG: "I think it's hard for you to argue that Congress intended the entire act of fall if the mandate were struck down, when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act"

J Thomas: "General Hawkins, I think we're shadowboxing a bit here" 🥊

Texas SG now making the case that Texas' "increased Medicaid enrollment" as a result of ObamaCare constitutes an injury for which plaintiffs can seek relief thru a lawsuit

J Breyer: Riffing on hypos. Imaginary statutes mandating the buying war bonds, planting trees, cleaning up the front yard

J Breyer: Asking about the risk of creating a slippery slope of unconstitutionality if they rule for the GOP states

J Alito: Going back to the alleged injury stemming from Texas having to apply the ACA's expanded Medicaid eligibility formula—"What would happen if you didn't do that?"

Texas SG: "I believe the federal government could bring some action against us"

J Sotomayor now parsing Texas' argument re Medicaid expansion, saying they'd have to clear a high evidentiary bar. Must prove that the people who newly enrolled in Medicaid were compelled to do so, even though there's no longer a tax penalty

Texas SG says that after NFIB, there's no other way to read the mandate other than as a "command to purchase health insurance" -- which now lacks constitutional support

Texas SG and Kagan now wrangling over what the holding of NFIB said...debate touches on the court's "saving clause" reading and whether it has any bearing now

^^ debate now appears to turn on whether, post NFIB and post 2017 tax cuts, the mandate is now a "command" with coercive power

J Gorsuch picking up on this now too

Texas SG: Only statutory provisions that generate government revenue can be considered a tax. This doesn't, so it ain't. And there's no other constitutional basis to uphold the mandate

J Kavanaugh: Asks if you can have a government mandate without a penalty

⚖️WOW — J Kavanaugh: "Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place -- the provisions regarding preexisting conditions and the rest."

Kavanaugh: "Do you read Congress as having wanted to preserve protection for coverage for people with preexisting conditions? Because it sure seems that way from the record and the text."

Trump administration is on deck—>

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