Thread by @jedshug

Threading on the ACA California v. Texas SCOTUS case.
The Justices asked Cal's Michael Mongan (defending the ACA) mostly about standing. Little on severability -- which is the threat to the whole ACA. Odd.

We won't get a sense of the Court until the challengers face questions.

https://twitter.com/jedshug/status/1326181178135769091

Breyer was asking his first question, focusing on severability, and Roberts just cut him off and called on Alito (who has less seniority). This is very weird. Probably a technical glitch, but not a good look.

Breyer was actually asking a tough question for the ACA on non-severability:
"ACA supporters told us that the individual mandate was necessary for the entire ACA balance of costs. Isn't that a relevant fact for interpreting the statute?"
I hope he gives Verrilli a chance.

Roberts goes back to Breyer now, apologizes for audio problems. But Breyer declines, asks no questions.
I wanted him to ask and get a good answer!
This is a legitimate problem for the ACA.

Kagan goes back to this point: "There are relics of the original argument that individual mandate was a key to the whole law. That finding still exists in the law. Is that a problem for severability?"

Verrilli: "But there still is no severability clause." Good clear answer.

Verilli: "Over time, we see how the ACA is workign. By 2017, the markets were all up and running and working."
Implicitly, he's saying that whatever Congress understood of the mandate in 2010, by 2018 Congress knew the mandate was no longer necessary when they zeroed out the tax.

Kavanaugh asks about the Necessary & Proper back-up basis, then big statement (and not a surprise, to me at least):

"I tend to agree with you on severability. It's a clear case. Just strike down the mandate and leave the rest of the statute."

I think it remains clear that there are at least 5 votes for severability to save the ACA, regardless of the individual mandate.
Kavanaugh was deliberately signaling that the ACA as a whole is not going to be struck down.

Then Roberts hammers Texas SG Hawkins on severability.
Roberts isn't hiding his contempt for this argument.
And Thomas wasn't trying to help him, either. And seems unimpressed with Hawkins "shadow-boxing."

Breyer, openly agitated by the Texas position, notes that Congress has passed lots of statutes that are "precatory," asking people to "beautify parks" or "honor veterans."
"Are all of those hortatory statements unconstitutional?"

Kagan hammered him.
Hard to get a read on Gorsuch.
Kavanaugh emphasizes that the precedents establish default rule of severability, and there is no "inseverability clause" here. "I'm having trouble with your argument."

I've seen enough here. I'm just hanging around to hear ACB.

ACB: "I want to go back to Gorsuch's questions on STANDING." She is skeptical of Texas's argument on standing to challenge ACA.

Breyer was righteous in taking down Wall for ludicrous claims about "shall"/"should":

Breyer: "Have you ever heard anyone in your family use the word 'shall' or 'should' as a request?"
Wall: "It always had a consequence."
Breyer: "Your family was more organized than mine."