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Good morning from Washington, where the fate of the #ACA is yet again before the Supreme Court. I plan to live-tweet the oral argument.
First a couple disclosures: I filed an amicus brief arguing that even if the "individual mandate" is now unconstitutional, it is severable from the rest of the #ACA. https://www.supremecourt.gov/DocketPDF/19/19-840/143417/20200513125326824_Adler%20et%20al.%20Amicus%20Brief%20ISO%20Petitioners%205.13.2020.pdf
The brief was for an all-star, cross-ideological group of law profs: @jadler1969, @nicholas_bagley, @AbbeGluck, and @IlyaSomin. These professors were on different sides of past SCt cases on the #ACA but are emphatically on the same side on the severability question here.
Here's an article by @CitizenCohn about the version of this brief we filed in the district court. https://www.huffpost.com/entry/obamacare-lawsuit_n_5b228d93e4b0adfb8271dcca
To be clear, anything I tweet in this thread should be attributed only to me, not to the signatories of the amicus brief. They are more than capable of speaking for themselves, and have been doing so. A few examples follow.
Here is a preview of the argument by @jadler1969. He identifies some key issues to watch for. Among them: will Justices question the standing of the individuals and states challenging the #ACA? That could provide an off-ramp out of the case. https://reason.com/volokh/2020/11/09/on-the-eve-of-argument-in-california-v-texas/
Here is @nicholas_bagley on some of the practical consequences of invalidating the entire #ACA, as the Trump Administration and red states are advocating: https://www.theatlantic.com/ideas/archive/2020/11/fallout-scotus-health-care-decision/617048/
Here is @AbbeGluck clearly unpacking the severability issue: https://www.nytimes.com/2020/11/10/opinion/obamacare-supreme-court.html
Here is @IlyaSomin with thoughts on why the SCt took the case, as well as discussion of severability. (Ilya believes the residual mandate is unconstitutional but that the challengers' argument that this means the entire statute falls is "badly wrong.") https://reason.com/volokh/2020/03/02/obamacare-returns-to-the-supreme-court-yet-again/
Another disclosure: while in the Solicitor General's Office, I worked on defense of the #ACA in NFIB v. Sebelius. (The challengers in the case being argued today attempt to use the SG's arguments on severability in NFIB to support their position.) http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/11-398tsUnitedStates.filed_..pdf
DOJ has changed its position several times in this case, before landing on the stance that the "individual mandate" is unconstitutional, that the *entire statute* is thus invalid, but that such invalidation would apply (at least at first) only in those states challenging the law.
According to press reports, this total-invalidation position was directed by Pres. Trump over the objections of AG Barr. DOJ customarily defends federal statutes. Here, it is taking an aggressive position trying to invalidate one. This is . . . unusual. https://www.politico.com/news/2020/05/06/trump-supreme-court-obamacare-240366
A few things I'll be listening for today: (1) will any Justices question challengers' standing? That's a sleeper issue in the case.
(2) How much time, if any, will defenders (blue states and the House of Representatives) choose to spend defending the constitutionality of the penalty-less "mandate." My guess is not that much -- that Q is largely academic; they will pivot to severability whenever possible.
(3) How much will the practical consequences of invalidating such a huge statute feature into the argument? Relatedly, will Justices expressly invoke the pandemic to suggest that now might not be good one to upend the healthcare system? (Count on advocates to make that point...)
(4) How will challengers deal with severability precedent that came out as this case was being briefed? Last term, the Court issued 2 decisions (Seila & AAPC) that reemphasized the Ct's strong reluctance to invalidate more of a statute when part is unconstitutional.
These cases (and the Supreme Court's severability doctrine generally) create really strong headwinds for the challengers and the Trump DOJ.
As @AbbeGluck has written, "[t]he Affordable Care Act (ACA) is the most challenged — and the most resilient — statute in modern American history." We should know more soon on whether that resilience will continue. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561167
Here we go.
Fun fact. The Marshal's traditional opening : "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting."
Now that arguments are over the phone, they've dropped the "draw near" part.
The Solicitor General of California is going first. He's defending the #ACA. As expected, he pivots very quickly to severability. That's the real ball game here.
In these telephonic arguments, the Court asks questions in order of seniority. CJ Roberts goes first. Interestingly, he opens with standing.
As @jadler1969 has noted, standing could provide an off-ramp to dispose of the case without addressing the constitutional or severability questions.
The pandemic makes an early appearance in a question by Justice Thomas in a question about standing.
Justice Thomas wants to know if someone would have standing to challenge a mask mandate even if there were no penalties associate with it.
Justice Thomas famously asks almost no questions at (in-person) oral arguments but since the Court's move to telephonic arguments he has been quite active.
The Justices have become pretty vigilant about enforcing their own time limits so that the Chief doesn't have to do so.
The government is usually very hawkish about standing limits. This question by Justice Breyer gets to the fact that in this case the government has come up with a novel argument *in favor* of challengers' standing.
Interesting that so many of the questions so far involve standing.
CA SG tries to pivot from standing to the merits, but Justice Alito brings him back to standing. Justice Alito's questions indicate a possible view that states are injured by other portions of the #ACA and can thus challenge the penalty-less mandate and argue for inseverability.
A friendly question from Justice Sotomayor, again on standing.
This is a key question. Did the SCt's reading of the mandate as predicate for a tax in NFIB carry over to the post-2017 statute in which the tax is set at $0?
