Thread by @RewireNewsGroup

What’s up nerds! @AngryBlackLady here. Before we begin the SCOTUS live-tweet, let’s talk about what this ACA case is all about.

SEVERABILITY.

I don’t know if you really, but back when the Court said the ACA was A-OK, it did so because it said that the individual mandate was a tax and that the ACA was a valid exercise of Congress’s taxing power.

In 2017, when Congress passed the preposterously named Tax Cuts and Jobs Act, it zeroed out the individual mandate which means no one had to pay a penalty for not getting insurance.

Then because Republicans couldn’t repeal the bill on their own, they filed a lawsuit and asked a super partisan judge to do it.

In California v. Texas, a district court in Texas found that the mandate is no longer a tax—since there was no penalty anymore—and that the mandate was so intertwined with the bill, that it couldn’t be severed.

That the whole bill had to die.

So the court tossed the whole bill. It’s absurd. But that’s where we are.

Ok, let's do this.

Roberts: Is someone who doesn't follow the mandate and purchase insurance violating the law?

You don't have to buy insurance and if you don't buy insurance nothing happens.

So why do you have standing? Where is your injury? Can you challenge the law?

Mongan (California's solicitor general) says no. You don't have standing because literally nothing is going to happen to you.

Thomas speaking always freaks me out.

He's making a hypothetical about face mask wearing. Asks what if there was a mandate to wear a mask but no penalty and no threat of enforcement. Can a person challenge the law? Do they have standing?

Mongan: Nah dude.

Folks challenging the law are saying somehow that just people out in the world knowing that you didn't buy insurance is an injury the court can remedy. Because people will know you broke the law and that's an injury.

Even though there's no enforcement and no penalty.

WUT.

Breyer's up: How do you respond to the U.S. Govt's theory of standing.

Mongan: It's a novel theory that's never been endorsed by this court. Because then any American regulated by any provision of the ACA would be able to file a challenge even if they aren't harmed.

Alito is up: His question is boring and I really did type it out and then delete it because nobody cares.

NEXT.

The idea is that a plaintiff shouldn't be able to challenge one provision of a complex law and then claim standing to challenge the entire law because that one provision cannot be severed from the law is PRETTY RIDICULOUS.

JUST CUT THE UNCONSTITUTIONAL BIT OUT OF THE LAW AND LET THE REST STAND.

That's what courts generally do.

This argument is really silly. so i'm going to type about it in all caps.

SONIAAAAAAAA: If plaintiffs have claims challenging provisions about Medicaid eligibility (which is what Alito was talking about, boringly) or any other provision then they should bring a challenge to those provisions, not the individual mandate provision.

Mongan: yeah exactly

Mongan: Congress zeroed out the tax to make it inoperable. That way consumers could choose whether to buy insurance or not.

Texas is saying it is harmed by this because then more people will apply for Medicaid and drive up costs for the state.

But they need to show that.

Texas has to provide specific facts to establish injury and what caused that injury. Texas hasn't done that. They're just speculating that their costs will go up as a result of Congress tossing the individual mandate.

Gorsuch: Wants to know if there are legal consequences. If the ACA would allow an enforcement action against someone who refuses to buy insurance.

Mongan: there's no threat of enforcement and Texas wouldn't be able to establish that there is.

All of this is entirely speculative really. IT's really just a desperate attempt by Republicans to have the court kill the ACA because they couldn't get it done in Congress after eleventy-three attempts.

Justice Kegstand: What if there was a federal law requiring everyone who owns a house to fly an american flag.

Does a person have standing to challenge the law if there's no penalty for them not flying a flag?

Me:

Brad McBeer: Some people will do things just bc they want to comply with the law.

They will?

Sure ok.

Rightwing Pam Beasley:

What should we make of the fact that Congress didn't repeal the individual mandate but only zeroed it out.

Mongan: There's no real difference.

WHYYY ARE WE HEEEEERE

Mongan: It would make no sense to allow Plaintiffs to leverage this single inoperable provision (the individual mandate) to tear down the entire bill.

JUST SEVER THE INOPERABLE PROVISION AND KEEP THE REST OF THE BILL. THIS IS NOT COMPLICATED.

Think of it this way: If a person has a tumor, you excise the tumor. YOU DON'T KILL THE PERSON.

that's severablity in a nutshell.

Verrilli is up arguing for Congress:

It doesn't make sense that the Congress which zeroed out the mandate in order to protect people from financial penalty would then approve of throwing those people off of insurance back into the private markets.

Roberts: But in 2010, Congress said that the mandate was key to the bill. Now you're saying that they didn't think it was. Did we spend all that time talking about broccoli or nothing?

(That's a Roberts tip o' the hat to Scalia)

Thomas talking again: i'm not ok.

Verrilli says that the Congressional Budget Office told Congress there would be no difference in repealing the mandate outright or zeroing it out. So they zeroed it out.

Verrilli cont'd: It doesn't make sense that people feeling like they have to comply with the law (the moral suasion argument) means that the whole law needs to be killed.

IT REALLY DOESN'T MAKE SENSE YOU GUYS

Breyer is asking about severability, i.e., the don't kill the person rule.

lol

Keep in mind that the trump administration keeps lying and saying they're going to protect preexisting conditions but has no plan to do so.

Sonia: Given a choice between invalidating the entire ACA and just zeroing out the tax, that the 2017 Congress's choice was to just zero out the tax.

Verrilli: YUPPPPPP. Efforts to repeal the entire ACA failed, so they zeroed out the tax.

Sonia: So by choosing to zero out the tax and to NOT repeal the ACA, the 2017 Congress has told us that they want to zero out the tax and NOT repeal the ACA.

This is just common sense, y'all

Kagan: What do we do about the fact that the 2010 Congress found that the individual mandate was key to the law.

Verrilli: Doesn't overcome the strong presumption of severability because there's no inseverability clause.

If Congress wanted to make it inseverable, it would have

I think my brain is repeatedly exploding, just fyi. send help

Basically it doesn't matter what the 2010 Congress thought about the individual mandate being key to the ACA. The 2017 Congress didn't intend to repeal the ACA.

Gorsuch is saying things. LOL

Just from a non-lawyer standpoint, this is all ridiculous. The health of millions of Americans hinges on really procedural (and relatively boring) arguments about standing and severability

In 2010, the Court said that the ACA can't be grounded in Congress's commerce clause power. The Court said it was a proper exercise o the taxing power. But since there's no tax anymore, what's the constitutional basis.

Verrilli: The Necessary and Proper Clause.

The Necessary & Proper Clause allows Congress to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

Justice Kingdom of God:

She's also saying things.

Verrilli: The ACA has been the law of the land for 10 years. The healthcare sector and American people have relied on the law. To assume that the 2017 Congress put all of that at risk when it simply zeroed out the tax is absurd.

Texas AG: The mandate is a command to puchase health insurance. The 2017 Congress zeroed out the mandate. The 2010 Congress found that the mandate was a key part of the ACA. Since it has been zeroed out, it is inseverable and the whole law must die.

Roberts: The 2017 Congress didn't repeal the ACA. Why should we do it?

Under the severability question, we ask ourselves whether Congress wants the rest of the law to survive if a provision is severed. The answer to that question seems to be yes since they didn't repeal it.

Roberts: There's no inseverability clause here that looks like any inseverability clause I've ever seen.

AG Hawkins: doesn't get to finish because Thomas is talking again.

Thomas: if there's no penalty for not buying insurance, then what is the injury? (You need an injury to have standing.)

AG Hawkins: People will sign up for insurance simply due to a command by Congress that they do so.

REALLY? like...

REALLY???

Breyer: There are plenty of statutes that have commands. "Plant a tree." Or during World War I "Buy war bonds."

Are all those statutes open to challenge now on the merits? At least one person will plant a tree or buy a war bond.

They are commands with no enforcement.

Breyer sounds pretty annoyed. lol

Can people challenge hortatory statements? (MY con law professor at UVA loved the word hortatory.)

AG Hawkins is saying the individual mandate isn't a hortatory statement. It's the LAW that you have to buy health insurance and that LAW is subject to challenge.

(But again, there's no enforcement mechanism for the mandate, so in effect, it is hortatory. I find it hard to believe that people are dying to comply with federal law and will be morally swayed into doing so. I mean come on.)

Sonia: The CBO predicted that only a small number of people would comply with the law because of a willingness to comply with the law. You have to prove that small number includes people who didn't enroll for Medicaid or CHiP when it was a legal requirement but would do so now.

Sonia: at some point, common sense would seem to say "huh"?

lmaoooo

WHO ARE THESE PEOPLE WHO ARE GONNA BE MORALLY SWAYED TO ENROLL NOW WHEN THERE'S NO TAX BUT REFUSED TO ENROLL WHEN THERE WAS A TAX.

This Hawkins dude isn't making much sense and Sonia is backing him into a corner using basic logic.

Kagan: In NFIB we said the ACA was not an unconstitutional command. Since then, the individual mandate has zeroed out the penalty and Congress made the law less coercive. So how is the mandate a constitutional command now when it was't a constitutional command then.

AG Hawkins: The Court isn't bound by that holding because the underlying predicate of that holding--the penalty--no longer exists.

Kagan: "If you make something less coercive, how does that make it a command?"

Both Kagan and Sotomayor are talking circles around the Texas AG. lol

Gorsuch: Verrilli is saying that this is necessary and proper to the taxing power... it's just that congress has set that tax to zero. Congress could later choose to increase the tax again right?.

(This is a good question!)

Hawkins: It isn't a tax bc it doesn't raise revenue.

Still doesn't answer the question about Congress choosing later to increase the tax.

I officially need this guy to stop talking.

Justice Chugs Kavington is talking again.

Chugs on severability: if the mandate can't be justified under the commerce, taxing, or necessary and proper clause, it seems clear that the proper remedy would be to sever the mandate provision and leave the rest of the provisions (like preexisting condition provisions) in place

Hawkins: The 2010 Congress said over and over that the mandate was essential to the operation of the law. Congress wouldn't have enacted the ACA without the mandate.

Chugs: But Congress effectively did that in 2017 when they zeroed out the mandate.

Chugs seeeeeeems like he's not buying Texas's inseverability arguments but who knows.

Justice Fainting Couch (Barrett) is up:

I don't really care, do you

I honestly didn't listen to her question. lolll. She annoys me

I'm typing so fast, y'all are going to have to pardon my typos, my dear fellow law nerds.

At the end of the day, these clowns want to kill the health care law in the middle of a pandemic.

And that's truly the bottom line.

Jeffrey Wall, U.S. Solicitor General is up arguing for the U.S.

He's saying that it doesn't matter if the 2017 Congress didn't mean to kill the law. By zeroing out the mandate, they basically did.

Oy vey

Roberts: asking about standing again. You're saying a person who isn't injured by part of the law can challenge that part of the law and through that try to strike down other parts of the law that do injury them.

That expands standing dramatically.

Wall: There's a lot of textaul evidence here that overcome claims of inseverability. (like 2010 Congressional claims that the individual mandate was key, even though there's no express inseverability clause.)

Wall: They say they're injury bc they want plans that they can't have now. That's an Article 3 injury.

Thomas: asks whether to consider severability at the standing stage or the merits stage.

Wall: The govt view is yours. Plaintiffs want plans they can't get. that's an injury.

Wall cont'd: That satisfies standing. W'ere not asking for standing through inseverability. They have an actual Article III injury in fact.

Wall cont'd: On the merits, they have arguments about why insurance provisions can't be enforced against them... they are saying those provisions are inseverable from the rest of the ACA and the whole ACA has got to go.

Sure. Whatever.

Breyer: Is really annoyed.

lol.

He says if there's precatory language in the Code—which means supplication or entreaty—how do you know that this mandate is not just a supplication or entreaty?

Wall: Because the statute says "shall"--you shall buy insurance.

*eyeroll*

Breyer: You had someone read the entire U.S. Code and discovered that there's no precatory language that uses the word "shall"?

lmaooo. He's really so sick of the bullshit.

Wall: I haven't read the entire U.S. Code.

Breyer: I haven't either.

LOL.

Wall: There's a difference between shall and should.

Me: IS THERE REALLY?

PERSONAL UPDATE: i really have to pee.

Alito is tossing softballs to Wall.

Sonia: Do you concede that Congress has the authority to enact taxes with delayed start dates or taxes that phase out in the future?

Wall: Yes.

Sonia: If it said in 2017 that the tax would be zero for a few years and then would increase in 2022 that would be constitutional?

Wall: Yes.

Sonia: SO WHAT'S THE FUCKING DIFFERENCE.

Wall: Because the mandate isn't written as a tax. The Court construed it as a tax because of the revenue-raising function. Once you cut that revenue raising function out, it reads differently.

Nice recovery.

Kagan: The U.S. is pretty stingy when it comes to standing, so I'm surprised the government came in here with this dumbass standing argument.

yes. WHY ARE YOU HERE, U.S. GOVERNMENT

she's not buying the "inseverability through standing" argument.

If all you have to do is present a theory about inseverability in order to have standing, then people are going to challenge all kinds of statutes. Why does the U.S. Govt want that?

(Because it's the trump admin)

Wall: It's going to be hard to for people to challenge single provisions of omnibus legislation because it's rare to have an inseverability clause and it's rare to have inseverability findings.

Note: There's no inseverability clause here. THey're trying to fashion one out of congressional findings from 2010 about the mandate being key to the ACA.

Chugs McKegstand is talking about precatory language again.

The words of the day are PRECATORY and HORTATORY.

Chugs, basically: There's a strong presumption for severability so please tell me something that will allow me to ignore that strong presumption and rule to kill the ACA.

Here comes Justice CaseoftheVapors:

She's asking if there's room for doubt on the issue as to whether the ACA can be upheld under the commerce clause. The Court in NFIB (the first ACA case) said it couldn't be.

She just wants to doublecheck.

Honestly listening to her talk makes me zone out. Sleepy Amy.

WRAP IT UP, Y'ALL.

AG Mongan is up again saying this is basically nonsense and to sever the damn individual mandate and let people choose to buy health insurance.

Also, there's a STRONG presumption of severability. And these clowns have not overcome that. The remaining provisions of the ACA have been functioning just fine. Congress chose to keep every provision while zeroing out the tax.

SEVER IT OUT. JUST FOLD IT IN.

*mic drop*

OK, THAT'S ALL FOR ME FOLKS.

Thanks for following along. And don't forget to hit that follow button and to stay tuned for a reaction #BoomLawyered podcast from me and @Hegemommy.

#TeamLegal OUT.