Thread by @charles_gaba

CJ John Roberts now bringing up the fact that the Obama Admin argued that the mandate penalty was "critical" in 2012; why is it no longer "critical"...Verrilli (for the defense) makes exactly my point: The situation was very different in 2012 vs. 2020.

acasignups.net/20/10/13/colum…

Verrilli correctly notes that the carrot (financial subsidies) simply turned out to be far more important than the stick (mandate penalty).

Put another way: GOP cut off most of the red leg...which was then replaced by the World's Most Expensive Shim®.

Verrilli correctly notes that THE SITUATION CHANGED BETWEEN 2010 AND 2017.

In 2010, virtually every insurance carrier said they wouldn't participate in the ACA exchanges without a mandate. If that had happened, the law *would* have failed *at that time*. 2017 wasn't 2010.

On the merits of the case, Kavanaugh says it's "hard to call it a tax" if it doesn't raise any tax revenue...which is absurd. There's plenty of taxes which don't actually raise any revenue--Verrilli notes that there are tax holidays from time to time.

Kavanaugh

Kavanaugh says flat out that he agrees that the mandate itself is totally severable!!

Barrett going back to "$0 tax = no tax" which again makes no sense.

The ACA's Health Insurer Tax was waived for several years before finally being completely repealed last year. That doesn't mean it didn't exist in the years it was waived.

Now we go to the plaintiffs. This is being argued by Kyle Hawkins, the TX Solicitor General.

He claims there's no way of knowing what was on Congress' mind in 2017 even though every REPUBLICAN member of Congress has stated flat-out that they didn't mean to kill the whole law.

CJ John Roberts asks about severability and correctly points out that 2017 Congress deliberately *didn't* kill the rest of the law.

Hawkins just got done mocking defense for trying to play mind readers...and is now playing mind reader himself.

WOW...Clarence Thomas asks a THIRD question! Isn't that like 3x as many questions as he's ever asked in years??

Clarence asks the plaintiffs WTF the actual "harm" is.

Plaintiffs say that the states are "harmed" because more people enroll in Medicaid.

Let me repeat: Republicans think that more people enrolling for a program they're eligible for is "harmful" to the states.

Breyer points out that there are hundreds of statutes on file with unenforceable "commandments" ("Buy War Bonds! Plant Trees!" etc.)

Wants to know which of these have to be struck down.

I missed Alito...now Sotomayor is up. She's bringing up the CBO report that only a tiny number of people would continue to enroll in Medicaid/CHIP specifically because of the mandate w/out having a penalty.

Points out there's no way of proving WHY someone enrolled.

In other words, if someone enrolls in Medicaid/CHIP (which are basically free/virtually free to them), how do you prove that they ONLY did so because the law told them they have to do so as opposed to because they wanted TO HAVE HEALTHCARE COVERAGE?

My take is this isn't going well for the plaintiffs so far.

Kagan is up: In 2012, we said the ACA *is* Constitutional; as of now it's even LESS coercive than it was at the time, so how the hell can it be *less* Constitutional now?

"If it's less coercive, how can it be more of a command?"

Says Hawkins is disputing the premise of SCOTUS' ruling in NFIB (2012 case).

Asks if Hawkins is saying the 2012 SCOTUS was wrong?

"What am I, a clown? I'm here to fucking amuse you??"

Gorsuch is up: Following up on merits:

Wow--He correctly notes that changing the tax from $695 to $0 still leaves it open to being raised again in the future.

Hawkins again trying the "no revenue = no tax!" argument which, again, is nonsense.

Gorsuch wants to know who he's supposed to enjoin and what he's supposed to enjoin them from doing.

I'm not following all of this but I think it has to do with the back & forth between the 1st judge, the 5th Circuit ruling and SCOTUS about exactly how to proceed.

Kavanaugh is up: "Assuming there is standing, re. the merits: There's no history of Congress having a mandate w/out a penalty."

On severability: If the mandate can't be justified, it seems clear that it should be struck down without hitting the rest of the law?

Kavanaugh: "INseverability clauses are usually very clear...they *didn't* include an INseverability clause here"

Hawkins tries to argue again that the mandate is "essential" because Congress said it was in 2010.

Kavanaugh rightly points out that THAT CHANGED IN 2017.

Barrett is up: Goes back to standing re. individual plaintiffs (as opposed to the GOP AGs)

Wants to know how any "harm" to them is traceable to the IRS/etc.

Barrett says if the plaintiffs were "harmed" at all, they were harmed by *Congress*, not by the IRS. Huh.

Barrett bringing up the "harm" to "states" being...having to print out & send forms?

Hawkins giving closing statement.

HAWKINS MENTIONS THE 3-LEGGED STOOL.

Except that the Red Leg of the stool is still there...it's just been swapped out for a $5 billion shim.

Next for the plaintiffs is Jeffrey Wall, the ACTING U.S. Solicitor General.

"ACTING".

Like the rest of Trump's appointees.

Clarence Thomas brings up the severability issue.

"As I was trying to explain to the Chief Justice..."

That sounds a bit disrespectful to Roberts to me.

Breyer is up: Re. merits of the case:

"I thought someone in the USSG office read thru the ENTIRE code and determined that there's not a single instance of a mandate w/out a penalty"

Wall trying to make "SHALL" into the magic word.

Breyer seems incredulous that anyone has read through every line of the U.S. federal legal code.

Wall saying there's a distinction between "should" and "shall".

Notes that there are certain exemptions, so what are they exemptions FROM?

Breyer notes the difference between an "entreaty" and a commandment.

Wall says that when he tells his kids they "SHALL" do something, it includes a penalty.

Breyer is apparently a more lenient father than Wall.

Alito is up: HOLY CRAP. *ALITO* is the one making my exact point: In 2010, the mandate *WAS* a critical part of the law, but in 2020 it simply ISN'T anymore.

It's gone from being the engine of the plane to being, like, the radio being broken.

Sotomayor: "Excuse me, I'm speaking."

Sotomayor goes back to the point that changing the tax from $695 to $0 still lets them change it back to $695.

Notes that the penalty could've been delayed until 2022 and would still be Constitutional.

AND THE AMOUNT *HAS* CHANGED! It was only $95 in 2014, $295 in 2015 and $695 starting in 2016!

The mandate penalty ramped up gradually over 3 years.

Wall still trying to argue that a tax of $0.01 is a tax but a tax of $0.00 isn't.

Again, this is bullshit.

Kagan: "I don't buy your bullshit, but let's say I did..."

"The U.S. is usually pretty stingy about standing"

Basically says if these dickheads can claim standing, pretty much anyone can claim standing for anything they're not happy about.

Kagan uses the phrase "concoct". Probably not a good sign for the plaintiffs when the judge says they've "concocted" a case.

Gorsuch is up: Agrees w/Kagan that granting standing here would open up a floodgate of everyone claiming "harm" from just about any large law passed.

Kavanaugh: Agrees w/Breyer that the U.S. code has a whole mess of crap in it.

Wall goes back to NFIB, again claiming that a tax has to generate revenue to be a tax.

Again: When there's a gas tax "holiday" the tax still exists during that time.

Wall: "everyone agrees there's no magic word"

Wall argues the mandate is "essential" to guaranteed issue & community rating (it isn't anymore), and those hook in with the rest of the law (they don't).

Barrett is up: Is it indisputable that NFIB's ruling about the Commerce Clause is a lock?

Wall: Yup.

Barrett: Let's say I agreed with you...doesn't that mean their claim is under the commerce clause, NOT the taxing power?

Wall gives his closing statement.

CA SG Mongan gives his rebuttal.

Mongan correctly notes that the only fallout from zeroing out the mandate penalty *NOW* only has a minor impact on the market and the law as a whole...which is what the CBO said in 2017: It would cause unsubsidized premiums to increase and some drop in enrollment...and that's it.

And...that's it.

The oral arguments before the U.S. Supreme Court in the #TexasFoldEm lawsuit over the #ACA are over.

The decision isn't expected until sometime between April - June of 2021.

My take: It went poorly for the plaintiffs and well for the defense.

HOWEVER, as @jrovner cautions:

https://twitter.com/jrovner/status/1326203638176477190

AGAIN: There's absolutely no way of knowing what the Supreme Court will rule...and the best way to make the case moot *before* next spring is to elect Jon @Ossoff & @ReverendWarnock to the U.S. Senate on January 5th:

acasignups.net/20/11/06/two-r…

Donate to them AND to @FairFightAction *and* @GeorgiaDemocrat *and* @MovementVote now:
secure.actblue.com/donate/garunof…

One more thing: Here's a reminder about just how much some conservatives have viscerally despised the #ACA since the beginning:
acasignups.net/20/07/06/basta…

Here's the full transcript. The merits of the case were irrelevant to these guys:

The transcript doesn't do it justice, however; I've cued this up to the correct point but it starts just past the 90 minute mark: