Let's do a MEGATHREAD while we wait for arguments to begin in the big GOP challenge to ObamaCare at SCOTUS, shall we? (you can listen to it on CSPAN at 10am, fyi) (1/x)

Three issues:

(1) standing,

(2) did the '17 Trump tax bill, which zeroed out the tax penalty for not buying health insurance, render the individual insurance mandate unconstitutional?

(3) if the individual mandate IS unconstitutional, must the entire ACA be struck down?(2/x

Let's deal with those in turn

(1) Standing — This is a question of whether a plaintiff has the right to sue. Among the various limits to this right is the Constitution's requirement that courts only hear "cases or controversies." More on that here—> https://www.law.cornell.edu/wex/standing 

(2) did the '17 Trump tax bill render the individual insurance mandate unconstitutional?

Plaintiffs: Yes because if the provision does not generate government revenue then it is an unconstitutional exercise of Congress' taxing power

Defendants: WRONG! It only needs the *potential* to generate revenue (to this point, some have theorized that House Dems/Biden may try to render this case moot by reinstating a tax. Some argue that even a nominal tax of $0.01 would defeat plaintiffs' argument here)

But let's say the court finds the mandate IS unconstitutional—can't the justices just lop off that one part and let the rest of the law survive?

Plaintiffs: NO! Congress meant for the mandate to be mutually reinforcing of the other parts of the law. You get rid of the mandate...

...and the whole thing collapses like a house of cards (not to be confused with House of Cards, starring Kevin Spacey, which collapsed in season 4)

Defendants: Psssshhhhhhhhh. Get real. Courts don't like to cancel more legislation than necessary—and they need go no further here

OK, argument about to start. Watch this space for more coverage TK

Calif AG (defending ACA): Hits the point that there's a presumption in favor of severability (i.e., cut off only the mandate if you must cut anything). Many legal experts think the court will sever here when they decide the case likely in June

CJ Roberts is asking about standing. Trying to determine the extent to which the plaintiffs are injured by the hollowed-out tax penalty

J Thomas: First question is about standing—probing the contours of what constitutes an injury

J Breyer: Asks about the theory of standing being advanced by the Justice Department, on behalf of the Trump admin, which wants the whole ACA to be struck down

J Alito: Asks why the ACA's change to the formula for calculating Medicaid eligibility does not harm Texas, if the new formula has, as Tx says, "greatly increased the number of persons on Medicaid in Texas"

J Sotomayor: Throws the Calif SG (not the AG, as I said above) a bit of a lifeline to get out of Alito's line of questioning about standing -- "if they have claims challenging the provisions that Justice Alito asked about, they should have brought that challenge...

.... not a challenge based on the individual mandate, correct?"

Calif SG: "That's exactly right"

J Kagan: Circles back to Alito's Q about Texas' alleged injury through more people availing themselves of health care, incl Medicaid, because of the law's very existence

J Gorsuch: Does some back-and-forth with Calif SG re: drawing lines about standing and potential penalties (even civil) for non-compliance with the zeroed-out tax penalty

~20 mins in and all we've heard so far are questions about STANDING

Have not yet addressed constitutionality of indiv mandate absent the tax penalty or severability

J Kavanaugh: STANDING Q. Hypo about requiring home owners to fly American flags outside their home (?)

If you're into weird law hypos (I am. Hell, who isn't?) J Breyer is the all time

Hope we get some today, stay tuned

J Barrett: Asking atty to distinguish between—and describe broader significance of—Congress' choice to zero out rather than repeal the mandate

Atty: "...Perhaps that would change the analysis. But if we get to the merits...." (he is ready to get to the merits)

Calif SG wrapping up now. Unless I missed something, he ONLY got questions on STANDING

Don Verrilli up now

CJ Roberts: Sounds like a severability Q -- "Eight years ago those defending the mandate emphasized that it was the key to the whole act"

"Did we spent spent all that time talking about broccoli for nothing?" (a Scalia deep cut)

Verrilli arguing for severability: "It's turned out that the carrots work without the stick"

J Thomas: Trying to lead Verrilli down a treacherous path re: severability:

"Could you explain why that penalty provision was so critical to the centrality of this provision?"

Verrilli: It doesn't make sense that Congress "preferred to bring the whole ACA crashing down" if mandate eliminated

J Breyer was in the middle of asking a severability Q--then ran into apparent tech difficulties. Now onto Alito

Alito now going at legislative intent from a different angle. He suggests that some members of Congress in 2017 (read: Republicans) who voted for the Trump tax cut and its zeroing out of the mandate "may have done so precisely because they want it the whole thing to fall"

J Kagan and Verrilli now in a back-and-forth over *which* Congress' intent should carry the day: the 2010 Congress, which included the mandate in the law, or the 2017 Congress, which zeroed out its associated tax penalty