Thread by @AliceOllstein

Today is the day the Supreme Court debates the fate of the Affordable Care Act. Coverage for tens of millions of people is on the line. Arguments begin at 10am. politico.com/news/2020/11/0…

California's solicitor general opens by arguing that Obamacare's zero-dollar penalty for not buying insurance "doesn't harm anyone and it doesn't violate the Constitution." c-span.org/video/?471185-…

Oh wow, Clarence Thomas, who *never* talks during oral arguments, compares the Obamacare's individual mandate to face mask mandates during Covid, says that even if they carry no penalty they can have a "chilling effect."

This is related to the question of whether the plaintiffs even have legal standing to challenge the ACA's constitutionality. If they can't prove they've been harmed by the law, they can't sue.

Justice Alito jumps in to ask about a completely different part of the ACA (the formula for calculating Medicaid eligibility) harming Texas, potentially giving them standing. California's lawyer says the lawsuit isn't making that argument, is only about the mandate.

Sotomayor stresses this same point, saying that if Texas had wanted to make the "Medicaid is harming us!" argument, they could have. But they didn't.

Don Verrilli, now arguing on behalf of the House of Representatives, says that when it comes to Obamacare, "the carrots work without the stick." Basically, people are buying insurance bc of subsidies and, y'know, wanting insurance, not bc of a now-toothless penalty.

A lot of back and forth about what Congress intended to do when they repealed the mandate. Defenders of Obamacare argue that there were years of attempts to repeal the whole law that failed, so clearly the change to the mandate penalty was not intended to be a backdoor repeal.

Conservatives argue the mandate is so central to Obamacare that the law can't survive without it (Justice Thomas referenced this).

Verrilli argues that Congress in 2010 and Congress in 2017 had different views and were confronting very different situations. In 2010 they thought the mandate was the lynchpin of the ACA. By 2017, the health markets were strong enough to survive w/o it.

Kavanaugh seems to endorse argument that the mandate is no longer constitutional bc it can't be a tax if it raises no revenue, but he adds there's a "very straightforward argument for severability." Basically, even if the court kills the mandate, the rest of the law can be saved.

Barrett also endorses the "mandate can't be a tax" argument. Verrilli closing statement stresses how millions of people now depend on the ACA & Congress never intended to leave them vulnerable when they zeroed out the mandate.

Chief Justice Roberts delivers what could be a death blow to Texas' argument against the ACA: "It's hard for you to argue Congress intended the entire act to fall."

.@SusannahLuthi reports that, so far, the Supreme Court seems wary of striking down Obamacare. Arguments are still ongoing! politico.com/news/2020/11/1…

@SusannahLuthi Even Justice Alito (no fan of Obamacare!) acknowledges that Texas' arguments that the mandate is so central to the ACA that the whole law has to go may not win him over: "The part has been taken out and the plane has not crashed."

@SusannahLuthi And there's the gavel! Arguments are over. We might not get a decision until next summer.