Thread by @pdmcleod

I’ll be tweeting out updates from the Supreme Court Obamacare hearings, which start at 10am. Republican states and the Trump White House are suing to have the Affordable Care Act tossed out as unconstitutional.

It’s a weird case. Brief recap is red states are arguing Congress accidentally made the individual mandate penalty unconstitutional when they cut it to $0.

Congress can’t force people to buy health insurance, but the Supreme Court ruled it can tax people who don’t buy insurance

Republicans are arguing that setting the mandate at $0 makes it no longer a tax, which makes it unconstitutional.

On its own this is just an abstract question, since the mandate was repealed.

But red states then argue if the mandate is unconstitutional the whole ACA is.

The proceedings kick off with California Attorney General Michael Mongan arguing that the individual mandate is “severable” from the rest of the massive bill. This sever ability question will be the key issue.

Clarence Thomas is comparing a toothless individual mandate with people being ordered to wear a mask — there may be no legal penalty but people who won’t could face opprobium.

That probably seems like a weird comparison but they’re having a debate about standing, and whether the mandate could do any harm.

California is arguing the red states do not have standing to bring this lawsuit because they haven’t proved any harm, though parsing their questions the justices seem open to allowing it. We haven’t gotten to the merits of the lawsuit itself yet.

Even the California solicitor general is saying they’d be happy to fight the case on the merits and adopt this broad interpretation of states having standing.

Brett Kavanaugh compares the mandate to a law requiring everyone to fly an American flag in their front yard, but there’s no penalty. He says many people will fly an American flag anyway because they want to follow Congress’s direction.

Newest SC justice Amy Coney Barrett says that Congress didn’t actually repeal the individual mandate, they just set it to $0. Looks like the justices broadly don’t see that as the same thing.

California lawyer says this could be fixed by a simple ruling declaring the mandate inoperative.

He warns the real danger is if plaintiffs can leverage a single, inoperative provision to tear down hundreds of other provisions that Congress chose to leave in place.

We’re finally getting into the severability question. Chief Justice Roberts said 8 years ago Congress said the mandate was an essential part of the ACA. “Why the bait and switch? Was Congress wrong when it said the mandate was the key to the whole thing?”

House lawyer Donald Verrilli said Congress was making predictive choices and put in carrots and sticks. It turned out the carrots — subsidies — were enough to get people onto Obamacare markets. He says Congress has the right to observe what happens and change policy choices.

Samuel Alito questions whether we know that Congress didn’t want to repeal the ACA when it reduced the mandate to $0 in 2017. Said some members may have intended that.

Verrilli says we shouldn’t assume Congress intentionally passed unconstitutional legislation.

For what it’s worth, I covered the bill that zeroed out the individual mandate and I never heard anyone, even the Tom Cotton types, say they expected this to bring down Obamacare. That argument wasn’t hatched up until later.

Seems pretty clear that Kavanaugh and Gorsuch are buying the argument that the mandate is unconstitutional because it doesn’t raise revenue and no longer justified as a tax.

That doesn’t mean anything in itself but would be the first step in any argument to toss out the ACA

!!!! Brett Kavanaugh says it’s a “straightforward case” under court’s precedent that you’d normally just cut out the mandate and leave the rest of the bill be.

That’s a huge statement to hear for ACA supporters.

Another big sign: John Roberts just said it’s hard to believe Congress wanted to repeal the ACA when they didn’t even try to. Says some members might have hoped the courts would strike it down “but that’s not our job."

Texas solicitor general Kyle Hawkins is basically arguing that the beliefs of the 2010 Congress, which believed the mandate was essential, should supercede the beliefs of 2017 Congress, which by then knew it was unneeded.

It sure seems like Kavanaugh and Roberts don’t think much of Texas’s severability arguments, which, with Breyer, Sotomayor and Kagan could be the majority preserving the Affordable Care Act.

Kavanaugh again says it’s “fairly clear” that precedent is the court would cut out the individual mandate but leave the rest of the Affordable Care Act. He asks the Texas lawyer how he gets around that as the precedents “seem on point here."

Hawkins says you have to look at the 2010 law saying the mandate is essential.

Kavanaugh says don’t you think the 2017 Congress wanted to keep pre-existing condition protections? It sure seems from looking at the records that they did.

Hawkins says it’s better to just look at the 2010 statutes rather than “play the game” of trying to guess whether Congress meant to repeal the ACA in 2017 by looking at speeches and such.

To reiterate: The Texas lawyer is urging the Supreme Court to disregard the will of Congress when Congress opted to preserve pre-existing condition protections.

Now White House lawyer Jeffrey Wall is arguing that Congress left the individual mandate standing as “a naked command” to buy health insurance, and that has consequences regardless of whether Congress realized it at the time.

Justice Alito asks a key question: How can you argue that a 0$ penalty that hasn’t been in effect for years now, and the markets have not collapsed, is an essential part of Obamacare that the law can’t work without?

Wall responds that the mandate was written in as an essential part of Obamacare in 2010 and while Congress set it at $0 it did not repeal the language, so the 2010 interpretation still stands.

He’s saying the 2010 interpretation overrules the reality of today.

Justice Kagan brings up targeting one tiny part of a bill to overturn the whole thing. “Isn’t that something that the United States should be very worried about? And isn’t it something that cuts against all of our doctrine?”

Wall says he doesn’t think floodgates will open.

The White House is essentially arguing this case is based on a unique set of facts so if you throw out the ACA this strategy to repeal bills won’t start happening all the time.

Now it’s Amy Coney Barrett grilling the White House lawyer. She says wouldn’t it be odd to assume Congress, in 2017, chose to make a provision of law unconstitutional?

Wall says it’s fair to say they likely didn’t think about this but we should revert to the 2010 ACA text.

And we’re done. Hard not to feel pretty confident that the ACA will *not* be tossed out after the comments from Roberts and Kavanaugh.

Ending this thread with a link to our story: The Republican Lawsuit To Overturn Obamacare Seems Doomed At The Supreme Court

buzzfeednews.com/article/paulmc…