Thread by @smmarotta

As outside counsel for @AHAhospitals, I will be live tweeting the #SCOTUS oral argument and providing analysis starting at 10 a.m. today. Opinions are mine. Read my earlier piece on their blog:
aha.org/news/blog/2020…. 1/

After the Chief Justice calls the case, we'll hear from Michael Mongan, the Solicitor General of California, who represents the coalition of States defending the ACA. He'll start with two minutes uninterrupted for an opening statement. 2/

Mongan's opening statement defends the constitutionality of the individual mandate with a $0 penalty, but also shifts to "severability" - whether the rest of the ACA can stand even if the mandate is unconstitutional. /3

Questioning starts with the Chief Justice, who asks about "standing" - whether the challengers have been injured by the mandate when there is no legal consequences for disobeying it. The "penalty" for not purchasing insurance, after all, is $0. /4

Justice Thomas also asks about standing, analogizing the $0 mandate to a local requirement to wear masks that has no legal consequences for violating it. Is the public disapproval for not wearing a mask enough to grant a challenger standing? /5

Mongan says that the "toothless" mandate does not injure anyone and therefore cannot grant the challengers standing. /6

Justice Breyer asks Mongan to respond to the Solicitor General's theory of standing. Mongan says that it is a "novel" theory that is "in tension" with the Court's precedents. Focus on standing suggests strong interest, perhaps, in deciding case without reaching the merits. /7

Justice Alito also asks about standing, asking whether the State challengers have proved an injury because it is forced to calculate eligibility for Medicaid under a new method, that increases costs on them. Mongan says that claimed injury has nothing to do with the mandate. /8

It's surprising that we are now on the 4th justice's questions and there have been no questions on the merits of the mandate's constitutionality or the severability of the mandate from the rest of the Act. /9

Justice Sotomayor lobs a friendly question to Mongan, suggesting that if Texas has a challenge to the Medicaid eligibility calculations, they should have brought that challenge, not the mandate or the Affordable Care Act as a whole. /10

Justice Sotomayor asks Mongan to clarify whether he is arguing that States were not harmed by the mandate as a matter of law, or as a matter of fact. Mongan says it's a matter of fact; the States have not shown that their costs increased as a result of the law. /11

Justice Kagan continues asking about the States' standing, asking why it's not "logical" that the mandate and the Act would increase Texas's costs. Mongan says that logic alone doesn't cut it; Texas had to produce proof. /12

Again, we're six justices in, and still no questions on the merits. A surprise, and raises the question of whether the Chief will allow another round of questions on the merits. /13

And, on cue, Justice Gorsuch asks about standing, asking whether the United States could bring a civil enforcement action to enforce the mandate. Mongan disagrees that the United States could, and says there is no threat of enforcement. /14

As @palmore_joe has said, talking about State standing is not where Mongan wants to be, because California is itself frequently a federal-court plaintiff, and wants a laxer standard for States to bring suit in other cases. /15

And here is Justice Kavanaugh, asking about standing. His hypothetical is whether a law requiring every homeowner to fly an American flag grants standing, even if there is no penalty for not doing so. Some people will fly the flag just because the law requires it. /16

Justice Kavanaugh and others are articulating the individual challengers' standing theory: That people generally feel obligated to follow the law, so even a penalty-less Congressional command inflicts an injury on them. /17

Now on to Justice Barrett, the most-junior justice, who asks one of the first merits-adjacent questions: Does it matter that Congress zeroed out the mandate penalty as opposed to repealing it? /18

Mongan pivots in response to Justice Barrett's questions, emphasizing that even if the mandate is unconstitutional, the rest of the law cannot and should not fall. This is the key argument for the ACA's defenders. /19

The Chief Justice offers Mongan a minute to wrap up, meaning that we'll have gotten through a full round of questions with very little discussion of the case's merits. Next up is Don Verrilli, arguing for the U.S. House of Representatives. /20

Mongan uses his wrap-up to emphasize the practical consequences of striking down the ACA to patients and others. /21

Verrilli, too, argues in his opening statement that Congress would not prefer to kick 23 million people off insurance and cause chaos in the healthcare markets. /22

The Chief Justice emphasizes "those that defended the Act" previously (here, a reference to Verrilli), argued that the mandate is "the key to the whole thing." And asks "why the bait and switch?" /23

Verrilli emphasizes, as @ahahospitals did in its amicus brief, that Congress's judgment changed over time. The carrots were sufficient to make the ACA work without the stick of the mandate. /24

The Chief Justice accidentally calls Verrilli "General," a reference to his former role as the U.S. Solicitor General. /25

Justice Thomas agrees that "the assessment" of the mandate's role has changed, but that the law itself has not changed except for the penalty, so why shouldn't the Court still view the mandate as essential? /26

Verrilli is given some room to argue, emphasizing that Congress understood there was no difference between zeroing out the mandate and eliminating it and that Congress would not want to bring the entire law "come crashing down" without the mandate. /27

Justice Breyer with some telephone problems, asking whether they can hear him. They can. /28

Justice Breyer's time gets gobbled up by his audio issues, unfortunately, but Justice Alito is on to a standing question. /29

Verrilli emphasizes that the injury that grants standing can't come from inseverability. If Provision B is what injures you, you can't get standing by attacking the unconstitutionality of Provision A and arguing that Provision B is inseverable from Provision A. /30

Verrilli is one of the best defenders of the Affordable Care Act, and he is showing his skill at it today, slipping in longer answers among the justices' questions. /31

Justice Sotomayor gives Verrilli a bit of a breather, tossing him softballs that allow him to emphasize and re-iterate his core points. /32

Verrilli makes a key point, emphasizing that if people didn't enroll in Medicaid before with a mandate tax, it is unlikely they will feel compelled to enroll in Medicaid now where there is no tax backing the mandate, suggesting the States do not have standing. /33

Justice Kagan asks Verrilli about the findings in the original ACA that the mandate is necessary to make the Act work. Verrilli says it is evident that the later Congress didn't agree with that predictive judgment; it repealed the tax that backed the mandate. /34

Justice Gorsuch asks about the constitutionality of the mandate without a penalty, suggesting that if the $0 penalty does not raise revenue, it cannot be a tax. But the Act's defenders can prevail even if the Court finds the mandate with a $0 penalty unconstitutional. /35

Verrilli says it doesn't matter whether there is an enumerated power to support the penalty-less mandate. It is just a "hortatory" law, like asking people to salute the flag or stand for the National Anthem. /36

Justice Kavanaugh says this is a "very straightforward case for severability" under the Court's precedents. This is a key comment from him and suggests that he may side with the Act's defenders on severability. /37

In his wrap up, Verrilli emphasizes that "millions rely on" the ACA's benefits and that only an "extraordinarily compelling reason" can justify striking down the Act. And he says the challengers' arguments do not meet that standard. /38

Now up is Kyle Hawkins, the Solicitor General of Texas, arguing for the States challenging the Act. /39

It's notable how many people have referred to arguments Verrilli made when defending the Act previously, highlighting his role in defending the Act, both in and outside the Executive Branch. /40

The first question from the Chief Justice is that it is "hard to argue" that Congress intended the entire law to follow when it did not even "try to repeal" the law itself. They may have wanted the Court do that, but that's not the Court's job. /41

If you're counting votes on severability, I think you have to say that the Chief Justice and Justice Kavanaugh agree with the Act's defenders. Add that to Justices Kagan, Breyer, and Sotomayor, and that's a majority. /42

Justice Thomas asks Hawkins to explain what his injury is when there is no threat of enforcement of the mandate. Gives Hawkins a chance to make his standing case unimpeded. /43

Justice Breyer emphasizes that Congress routinely passes laws encouraging people to do things - "buy war bonds" or "plant a tree" - but doesn't mean for them to have the force of law, meaning that you're not injured and don't have standing to challenge those laws. /44

Justice Alito is now on standing again, asking where there'd be penalties for not calculating Medicaid eligibility in a certain way. Hawkins admits that he doesn't know, but points to penalties for failing to failing to report employees' health-insurance status to the IRS. /45

Justice Sotomayor is pressing Hawkins on his theory that some small number of people will enroll in Medicaid just because the law requires it even though they didn't do so when the failure to do so was backed by a penalty. Asks "does that make any sense to you?" /46

Justice Kagan asks how the mandate can be unconstitutionally coercive when removing the penalty made it less coercive than it was. /47

Hawkins has been on his back heel throughout the argument. Except for the softballs from Justice Thomas, he's been ducking and weaving his entire time at the (telephonic) podium. /48

Justice Gorsuch asks why a $0 tax cannot still be a tax. Congress might just want to have the flexibility to increase it in the future. Hawkins responds a tax that does not raise revenue cannot be a tax and that a $0 tax could support any number of unconstitutional laws. /49

Justice Kavanaugh asks whether there any any examples of laws that are a command (as opposed to just precatory) that are nonetheless unenforceable, saying he can't think of any. /50

KEY: Justice Kavanaugh asks Hawkins how he "gets around" the precedents on severability. Justice Kavanaugh making clear that he sees the mandate as severable from the rest of the law, which is enough to uphold the Act. /51

Hawkins keeps clinging to the ACA as originally enacted, but Justice Kavanaugh is just bludgeoning him, asking whether Congress "intended to keep coverage for people with preexisting conditions," saying that it sure seems Congress did. /52

Justice Barrett is back on standing, asking whether the injury really comes from Congress, not the Executive, and you can't enjoin Congress. /53

Hawkins in his wrap-up retreats to a position that the mandate is at least inseverable from the guaranteed-issue and community-ratings provisions, a major fallback position suggesting that he sees the writing on the wall. /54

Finally, Acting Solicitor General Jeff Wall is up for the U.S. government, agreeing with the challengers that the entire law falls. This is an extraordinary position for the Solicitor General, who ordinarily defends laws if there is any colorable basis to do so. /55

Wall is perhaps the most-sedate of the four advocates, bringing down the temperature of the argument somewhat after Hawkins' faster-paced delivery. /56

The Chief Justice is asking Wall about the United States' standing theory. Generally, the Government prefers standing to be limited, making Wall's support for the challengers' standing an unusual position. /57

Justice Breyer is disagreeing with Justice Kavanaugh, suggesting that merely precatory statutes are quite common. Wall says that precatory statutes are common, but the mandate is not merely precatory. It is a "shall" statute. /58

Justice Breyer continuing to be skeptical that there is no precatory law that includes the word "shall." Wall insists that the precatory laws in the U.S. Code say "should," not "shall." Both admit they haven't read the U.S. Code cover to cover. /59

Wall and Breyer now discuss parenting styles, with Wall saying that when he tells his kids "shall," that is a "command backed by a penalty." /60

In response to questions from Justice Alito, Wall says that the ACA's original Congressional finding that the mandate is essential is "a targeted inseverability clause." /61

Wall gives the best explanation of the challengers' severability theory, saying that there is a difference between what Congress thought and what Congress actually enacted. But it seems unlikely this view has the votes to carry the day. /62

Justice Sotomayor asks why, if Congress can suspend a tax under the taxing power and still have it be a tax, Congress can't zero out a tax under the taxing power and still have it be a tax. /63

Justice Kagan expresses surprise that the United States supports the challengers' standing since the Solicitor General is "pretty stingy with standing." /64

Wall trying to justify the Government's standing position by, essentially, arguing that it is good for this case only. /65

Justice Gorsuch is back to the question of how many precatory statutes are in the U.S. Code. No indication, so far, on whether he uses the word "shall" with his kids, and if so, whether he backs it with a penalty. /66

Justice Kavanaugh again back to his view of severability, emphasizing the "strong background presumption of severability" and that Congress knows how to write an inseverability clause. These questions are basically the ballgame for the challengers. /67

Wall comes back to his view that "many or most of" Congress's members didn't think they were dooming the entire ACA when they zeroed out the penalty. But nonetheless argues that is what they did. /68

Wall's closing statement is that "regardless of the wisdom" of striking down the ACA, that is what the Court should do and leave it up to the political branches to replace it. An honest statement of the challengers' position, but a difficult sell. /69

Mongan in rebuttal emphasizes the practical consequences, including the "millions" that rely on the ACA's benefits. /70

And that is it! Oral argument is always an imperfect measure, but the Act's defenders should feel good today. Thanks for joining me for this live tweet and I'll be joining @ahahospitals for a podcast breaking down the argument that will be released later today! /Fin

@threadreaderapp unroll