Thread by @RMFifthCircuit

OK, SCOTUS has arrived. c-span.org/video/?471185-…

We're starting with the California Solicitor General's 2 minute free-time. After that, Chief Justice Roberts will start off the questioning and then we go down the seniority list. This is weird - it's because we're having telephone arguments.

Roberts starts with standing - he questions whether the plaintiffs even are injured by the mandate. What if Congress passes a law requiring everyone to mow their lawn?

We're on to Justice Thomas - What about a mandate to wear a COVID face mask?

It's not clear to me that you'd have standing to challenge a mandate to wear a face mask with no penalty. I'm not saying I know the answer, but not clear.

Breyer asks - how do you respond to the United States' theory of standing?

This is more questioning on standing than I would have expected to start off.

Alito says that Texas has provided evidence that the ACA has increased Medicaid in Texas - doesn't that create standing?

But as Mongan says, this injury isn't caused by the provision they're complaining about - the mandate.

Mongan tries to pivot to the merits of the case in response to Alito's question - I was wondering when he'd do that.

Justice Sotomayor works on patching up the questions Alito asks - if the plaintiffs had a problem with these other provisions, they should have brought such a case, right?

Kagan asks - why wouldn't you think it's appropriate to say for state standing, this law costs us money by getting people to buy insurance, so we have standing?

This makes me think that Kagan thinks the plaintiffs have standing and would prefer to rule on the merits. That makes sense to me - I doubt she wants to clamp down on standing to kill off this case.

Gorsuch now pressing on standing. Mongan sounds like he's saying - "forget about standing! We win easily on the other points."

Kavanaugh goes with individual standing as well, with a hypo about a law requiring everyone to fly an American flag.

Kavanaugh is the second justice to ask about a sentence in the CBO report suggesting that a taxless mandate would still cause people to buy insurance.

Kavanugh actually asks a merits question! He wants to know, how do you respond to the argument that the mandate isn't a tax anymore because it doesn't raise revenue.

Barrett has another hypo along the lines of the lawn/mask/mandate question of the other Justices.

OK, Mongan is wrapping up. Almost all on standing here. A little surprising, but ok.

Here comes Don Verrilli, counsel for the House. He was the Solicitor General who won the NFIB case for the Obama administratio.

Roberts to Verrilli - 8 years ago, people told us that the mandate was the key to the act. But now everyone says everything is fine without it. Why the "bait and switch"?

Verrilli says in 2010 Congress says you needed both the carrot and the stick. But it turns out Congress was wrong in 2010. It works with the carrots and without the stick.

"Congress is allowed to learn from its empirical experience."

Justice Thomas asks a sort of confusing question, which Verrilli takes as an invitation to just give his 4 pronged answer on the merits of severability.

Some confusion on the call, but now Breyer is asking his questions.

Oh no. Chief Justice Roberts cuts off Justice Breyer, whom he apparently can't hear! Oh noooooo.

Alito sounds to me about where I expected (very skeptical about the ACA). He's pressing on severability.

This is true. Verrilli is very very good.

https://twitter.com/smmarotta/status/1326188795591602177?s=20

Kagan asks a question about what Texas always calls the "inseverability" provision - a finding in the original ACA that the mandate is important.

Verrilli correctly says it just isn't such a clause - this is a semantic game.

I've never understood the inseverability clause argument. It's nothing like that.

OK, we're on the merits with Gorsuch.

He basically flatly asks - what do we do about the asserted inconsistency between NFIB and the $0 mandate?

This is the key merits question about the mandate's legality, and the Fifth Circuit's decision that the mandate was unconstitutional.

Kavanaugh wants to understand the necessary and proper argument Verrilli was making in response to Gorsuch.

Kavanaugh asks whether the severability case would have been as easy under the 2010 law as it seems under the 2017 law?

I didn't understand Barrett's question about "locking Congress in." Just being honest - don't know what she means.

Verrilli is clearly answering something, so he understands, but I don't.

OK, so far, Kavanaugh has shown his hand. He thinks this is an easy severability case. Which is correct.

On to Kyle Hawkins, the Solicitor General of Texas, who is seeking to take down the ACA.

I think we are going to get a very good sense of how this case is going to go from the questions to Hawkins. Let's see.

CJR --> Hawkins: "It's hard for you to argue that the entire act should be struck down. Maybe they wanted the Court to do that, but it's not our job."

Yeah. Roberts showing his hand as well.

Roberts says Congress's decision to leave the act intact was "compelling evidence" that Congress didn't want to strike down the act.

Roberts says "this inseverability clause doesn't look like any other inseverability clause in the US Code to me."

Yeah. Just surgical from Roberts. This has always been a bad argument.

Thomas going back to standing.

But right now I'd say Kavanaugh and Roberts have flatly said they don't buy the "inseverability" argument. It couldn't have been clearer if Roberts have jumped off the bench and elbow dropped a pillow labelled "inseverability."

Roberts' comments weren't even questions. It was just statements. Very flat. No room. Unless Roberts and Kavanaugh were hiding the ball in an extremely strange way, the case is basically over with those votes.

Breyer is getting pretty frustrated with Hawkins about whether this is just a horatory statement.

Alito pressing on standing again. I wonder if a majority will just do severability, and then there will be an Alito/Thomas concurrence on standing grounds.

Here's how you know, so far, that Kavanaugh and Roberts are not going to strike down the ACA - neither has asked a question about which provisions to strike down and which not to strike down, which was 85% of the Fifth Circuit's decision (and is an impossible question)

At oral argument, judges want to try to figure out how to write an opinion. If they were thinking about writing an opinion saying some of the ACA was not severable, you'd expect *someone* to ask - ok, what about the calories counts at restaurants?

So far, silence.

Kagan starting in on Hawkins on the merits.

Kagan asks a very powerful question: she points out that there were people who even in 2010 didn't have to pay the mandate - so should they have been cut out of the NFIB savings construction? I don't think Hawkins has an answer to that.

Sean's right. For those unfamiliar with SCOTUS arguments, Hawkins has been under siege.

https://twitter.com/smmarotta/status/1326198018157252608?s=20

Gorsuch wants to know "who exactly" he is supposed to enjoin in favor of the individual plaintiffs.

Gorsuch asks about Skelly oil, which is the topic of the amicus brief Professor Walsh and I and other profs filed.

https://twitter.com/kevincwalsh/status/1326198791922397185?s=20

Kavanaugh again makes 100% clear he thinks severability is easy. "How do you get around these on-point severability cases?"

"Congress knows how to write an inseverability clause" but that's not what they wrote here.

Again, this is obviously right. It's not even close to such a clause.

"It sure seems like Congress wanted to preserve protection for pre-existing conditions" in 2017 - Kavanaugh.

Yes, of course that's what Congress was doing.

Always dangerous to read oral argument tea leaves, but this is over.

Bludgeoning is correct. Hawkins has no answers to these questions (not his fault, there are no answers!)

https://twitter.com/smmarotta/status/1326200001610084353?s=20

Hawkins is done, and still no questions about how to do the severability. Which is the killer tell here.

Jeff Wall is up for the United States. Let's see what he does with severability.

Roberts asks whether Wall isn't asking standing to be expanded broadly (which Roberts does not like, I promise you).

I wonder if anyone is going to ask Wall about why the United States has taken this position.

Thomas is still focused on whether severability is a standing issue or a merits issue.

Breyer has the definition of the word "precatory" right in front of him - a supplication or entreaty he says. lol.

You're getting a taste of what was my big take away from arguing at SCOTUS - which is that Breyer is actually super intimidating and not a cuddly professor.

We are learning that Justice Breyer would tell his children that they "shall" do things but without any penalty attached to his command.

I have not told my son he "shall" do anything.

I usually go with commands. "GO INSIDE." Not, "Son, you shall go inside."

This is a digression.

Back to the case, Jeff Wall is a really tremendous lawyer, make no mistake - but he's just not got a great case here.

Kagan: "think of this as a one-justice CVSG" in asking Wall for an answer to a question the United States did not take a position in their brief.

That's a Call for the View of the Solicitor General - the Supreme Court issues such orders to get the U.S.'s view on a question.

Kagan pressing Wall hard on why the United States suddenly has a generous view of standing.

Kavanaugh says, "why can't I just construe this language as being precatory" which would get rid of this case on both the standing and merits.

That's a nice question.

Kavanaugh asking about severability again. "Strong background presumption of severability" And Congress knows how to write an inseverability clause.

The only answer Wall and Hawkins have here is that "there's no magic language requirement."

OK, we're essentially done. California SG Mongan is doing rebuttal.

I will write a better tweet, but at this point I would say it is *extremely* likely that the ACA will be upheld, but the mandate struck down and severed out. A decision on standing (throwing out the case entirely) is also possible.

The chance that the ACA is struck down v. low.