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We'll see how this prediction holds up with the signals the justices are set to send in just a few minutes https://twitter.com/MikeSacksEsq/status/1325584057493819395
Roberts probing whether individual plaintiffs have standing because even though they don't have to pay anything, they're still breaking the law
Thomas hypos a mask mandate: "There is some degree of opprobrium of one doesn't wear one in some settings. What if someone violates that command, let's say it's in similar terms to the mandate here but no penalty, would they have standing to challenge the mandate to wear a mask?"
Alito's gonna vote to kill the whole law
Sotomayor tees up CA SG to demolish Alito's and Roberts's concerns
Sotomayor: "If they have claims challenging the [Medicaid and IRS] provisions that Justice Alito asked about, they should have brought that challenge, not a challenge based on the individual mandate, is that correct?"
Kagan seems open to finding standing for state and individual plaintiffs based on Alito's and Roberts' hypotheticals...but she may be playing some kind of chess here.
Gorsuch is a vote to find standing
Kavanaugh probes individual standing: "Suppose Congress passed a law requiring every american who lives in a house to fly an american flag in front of a house, there's no penalty, but the question is individual standing."
Barrett: "What should we make of the fact that Congress didn't repeal the provision?...You're asking us to treat it as if it's been functionally repealed, but that's not what Congress did. does that matter?"
Barrett: "What if you have to certify if you've complied or not and the government keeps track of that, so the government keeps track of whether you've worn a mask or whether you've purchased health insurance, does that change your view of whether there's an injury?"
Barrett seems a yes on standing for states as well: "The states have said these forms...do require as part of taxes for one to certify whether or not one has maintained the minimum coverage necessary, is that incorrect?"
Roberts describing as a bait-and-switch the ACA supporters' argument that the mandate was necessary to the entire law, and that now it isn't.
The sense that the mandate was essential in 2012 was probably why Roberts blinked and upheld it back then.
Verrilli says facts changed.
The sense that the mandate was essential in 2012 was probably why Roberts blinked and upheld it back then.
Verrilli says facts changed.
Thomas, too, gets at that change in the ACA supporters' argument.
Verrilli has to explain again that what the Obama Admin thought in 2012 ended up not bearing out in fact once the tax penalty was zeroed out.
And anyway the GOP Congress in 2017 thought rest of law could stand.
Verrilli has to explain again that what the Obama Admin thought in 2012 ended up not bearing out in fact once the tax penalty was zeroed out.
And anyway the GOP Congress in 2017 thought rest of law could stand.
Uhhhh Roberts why you snubbing Breyer?
Alito: "a lot of members in 2017 may well have thought that eliminating the penalty or the tax would not cause any harm and the whole act could continue to function without it, but others who voted for it may have done so precisely because they wanted the whole thing to fall."
Sotomayor, to Verrilli, but really, again, at Alito: "Am I assuming your answer to be that given a choice between...invalidating the entire ACA, and just zeroing out the tax, that the 2017 Congress's choice was just zeroing out the tax, is that correct?"
Kagan making Verrilli confront inconvenient opposing facts so that he can shoot down arguments based on them.
Kavanaugh giving pro-ACA side a big reason to exhale here: "I tend to agree with you that this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place."
Barrett going full academic on Congress asserting its own constitutional interpretation of a statute's justification over a SCOTUS construction.
If we lived in that country, we'd be in a better place.
If we lived in that country, we'd be in a better place.
Barrett saying the real-world implications in this particular case is that Congress, by zeroing out the tax penalty, meant to interpret the mandate as a violation of the commerce clause rather than legal under the taxing power.
Halfway through the argument and it seems there are at least 5 votes for standing and to strike down the individual mandate, but we're still waiting for Barrett and Roberts to tip their hands on whether they think the rest of the law can stand.
Roberts with the knockout punch: "It's hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same congress that lowered the penalty to zero did not even try to repeal the rest of the act."
Roberts will let the rest of the law stand: "I think, frankly, that [Congress] wanted the court to [strike down the whole law], but that's not our job."
Roberts + Kavanaugh + 3 Liberals = 5 votes to uphold the ACA even if they strike down the mandate. https://twitter.com/MikeSacksEsq/status/1326193356251275264?s=20
Roberts + Kavanaugh + 3 Liberals = 5 votes to uphold the ACA even if they strike down the mandate. https://twitter.com/MikeSacksEsq/status/1326193356251275264?s=20
Now, really, it's about seeing if Barrett will signal her agreement with Roberts and Kavanaugh, and what, then, that signal about this case will signal about her broader approach in politicized cases.
Breyer with a very angry monologue at TX.
Man, if the Trump Campaign's latest federal case to cancel PA's electoral votes gets to SCOTUS, it's gonna break Breyer, and the Trump/McConnell will squeeze in another justice, and hey maybe that's the play?
Man, if the Trump Campaign's latest federal case to cancel PA's electoral votes gets to SCOTUS, it's gonna break Breyer, and the Trump/McConnell will squeeze in another justice, and hey maybe that's the play?
This is actually why I thought Roberts would junk the case on standing - he could further tighten requirements thereby pushing the law further rightward, which is always his play when moving left on the result. But...maybe not this time? https://twitter.com/dorfonlaw/status/1326194653704622080?s=20
Kavanaugh, again, on upholding the ACA: "it does seem fairly clear that the proper remedy would be to sever the mandate and leave the rest of the act in place, so the question to you obviously is how do you get around those precedents on severability, which seem on point here?"
Kavanaugh, piling on: "Don't you think in 2017 do you read congress as having wanted to preserve protection for coverage for people with preexisting conditions? Because it sure seems that way from the record and the text."
Barrett back to standing, suggesting that maybe she's a NO there, after all. But unclear whether there are 5 votes on that.
Barrett's questions on standing could be her reading the room with the benefit of going last in these arguments, and signaling to her fellow conservatives that it's better to junk this thing on standing rather than upset their political allies with a pro-ACA ruling on the merits.
And now Roberts is spreading his standing hawk wings: "I think that really expands standing dramatically...you're letting someone not injured by the provision he's challenging to sort of roam around through those 1000 pages and pick out whichever ones he wants to attack."
BREYER IS REALLY MAD https://twitter.com/MikeSacksEsq/status/1326195224624975873?s=20
Kagan now calling out the admin for trying to "explode" standing doctrine
Kav straight up begging the plaintiffs and the admin to tell him HOW DON'T I VOTE TO SEVER THIS?
Final analysis/predictions:
Standing
YES: CT/SAA/NG/BMK
NO: 3 Libs
Toss-Up: JGR/ACB
Kill Mandate
YES: 6 cons
KILL ACA
YES: CT/SAA/NG
NO: 3 Libs + JGR/BMK
?: ACB https://twitter.com/mikesacksesq/status/1325584057493819395
Standing
YES: CT/SAA/NG/BMK
NO: 3 Libs
Toss-Up: JGR/ACB
Kill Mandate
YES: 6 cons
KILL ACA
YES: CT/SAA/NG
NO: 3 Libs + JGR/BMK
?: ACB https://twitter.com/mikesacksesq/status/1325584057493819395
I’ll have to go back and listen closer to Roberts and Barrett’s standing questions to figure out which were asked as devil’s advocates, and whether they made any distinction between the state and individual plaintiffs’ injury claims.
If there are at least 5 votes for standing I am curious to see how the liberals will handle the mandate’s constitutionality...will they hew to their NFIB position that it was, and therefore remains, valid under the commerce clause? Or will they accept Roberts’ tax power arg?
If the libs do accept that the mandate is only justifiable as a tax, then do they go along with the cons now to say it’s now unconstitutional, but then win on severability? Or do they take Verrilli’s arg today that taxing power still sustains it bc tax could be imposed again?
Now talking myself into thinking the case will be kicked on standing
