Thread by @mattbc, Oral argument in the ACA case is starting now. I'll be threading [...]

Oral argument in the ACA case is starting now. I'll be threading here.

https://www.c-span.org/video/?471185-1/health-care-law-supreme-court-oral-argument&live

Michael Mongan is the Solicitor General of California (the SG is the government's chief appellate lawyer).

Roberts is asking about standing – do the plaintiffs who brought this case have a right to be in court suing over this.

Standing is one of the first things that a court looks to.

Clarence Thomas has a question:

He starts out talking about facemasks and covid - would someone who doesn't wear a mask have standing to challenge a mask mandate.

Thomas: parties are arguing mandate, in combo with other provisions, really caused their injuries. Why would we determine severability at the standing stage?

Breyer: How do you respond to the gov't theory of standing?

Mongan: It's a novel (new) theory - it would give standing to anyone who is harmed by any provision of the ACA.

Alito: Is pushing at whether Texas has standing.

Sotomayor: give me your best argument why it'd be unreasonable for the plaintiffs to read the individual mandate as a legal command?

Mongan: In NFIB Court says it's a choice between buying insurance or paying tax. Congress understood that when it zeroed out the tax. Congress was relying on Court's construction. It's a choice, not a command

Sotomayor: are you arguing states aren't harmed by cost of more people enrolling as a matter of law or facts?

Mongan: Factual matter - states haven't proven that this has driven up their costs as a factual matter.

Kagan: States standing question – Texas is arguing this costs us money (we have to, for example send out forms)

Mongan: We'd be happy to lose on issue of state standing, move to merits, we don't think precedent allows this kind of state standing, but we still win on merits

Kagan: Individual standing question -

[they're still going back and forth about whether the State plaintiffs and the individual plaintiffs have the right to be in court]

Gorsuch: US could bring civil lawsuit to enforce mandate, right?

Mongan: disagrees.

Mongan again tries to move to the merits.

Gorsuch: raised costs could be enough to secure standing?

Mongan: yes, that's our position. [States haven't yet proven that costs will be driven up, TX hasn't introduced specific facts here]

[Kavanuagh and Mongan going back and forth on standing]

Kavanuahg: on the merits, under NFIB, it was justified under taxing clause, now doesn't raise revenue, how do you respond.

Mongan: Congress created an inoperative provisions - something Congress routinely does, has since founding. Not problematic.

Barrett: What should we do bc Congress didn't actually "repeal" it "zeroed out" does that matter?

Mongan: Congress understood what the Court had done, it was doing this through reconciliation, complying with Byrd rule.

[Barrett asks a question about standing]

Mongan: if the Court disagrees with us on merits - only remedy is order making provision (tax) inoperative - problematic to allow them to leverage 1 inoperative provision to tear down entire ACA

Mongan's final minute:

Congress' intent in zero'ing out individual mandate was to make it inoperative and enforceable. Rest of ACA was meant, by Congress to stay in place. Mongan run through horrible things that would happen if entire ACA was struck down.

Donald Verrilli is arguing for the House of Representatives,

Verrilli - there's just no way that Congress would've preferred outcome that would've thrown 23M off insurance, created healthcare chaos. This is not a game.

Roberts: 8 years ago those defending mandate, argued it was key to the whole act. Did we do all that for nothing?

Verrilli: there were a lot of carrots in the ACA, there was a stick - the tax payment if you didn't enroll. Congress then thought the stick was necessary. Turned out it wasn't necessary. CBO agreed - market will be stable without the mandate.

Verrilli: Carrots worked without stick - brought enough people into the market. Congress is allowed to learn from empirical experience in the world and adjust policy. That's what happened here.

Roberts: is the paperwork burden on states good enough to get states standing:

Verrilli: Nope

Thomas: Why was penalty provision central to the ACA?

Verrilli: this goes to heart of severability. Congress didn't intend for the entire ACA to fall – everyone was very clear that they were only repealing the individual mandate.

[audio went out for a moment]

Breyer: severability question - we heard, when this was first past, the mandate was absolutely crucial (bc unless people buy insurance the other provisions [pre-ex] won't work), why isn't --- he gets cut off for Justice Alito

Roberts cuts Breyer off. Very Weird.

Alito: a lot of MoC in '17 may have thought no harm to zero'ing out mandate. Others may have done it because they wanted the whole thing to fall.

Verrilli: focus on objective indications: statutory text and context

Verrilli: Court shouldn't assume members voted for something they knew to be/wanted to be unconstitutional.

Roberts back to Breyer now - audio difficulties. Sotomayor up now

Sotomayor: Congress just chose to zero out the tax instead of repealing the ACA right?

Verrilli: yes, we know Congress didn't repeal the ACA, we know that failed in the Senate.

Sotomayor: 2017 Congress already told us it doesn't want the rest of the ACA to fall, correct?

Verrilli: yes. entire ACA falling as an outcome here would be incompatible with what congress did.

Sotomayor: states claim they're harmed because more people being enrolled in healthcare costs them more – do you agree with them?

Verrilli: there's no evidence that it'd cost them more.

Kagan: we still have some relics of old view - i.e. mandate is key to the law - in the text of the ACA, what do we do about that?

Verrilli: There's still a strong presumption of severability. A finding isn't an operative provision of law, it's just a finding.

Verrilli: are you going to strike the entire law down because Congress didn't go clean up that finding? He points out that there was no need to do so.

Gorsuch: wants to put aside standing, just focus on merits.

Verrilli: Congress started with Court's construction of ACA in NFIB (holding mandate was a tax). NFIB made the mandate a lawful choice between getting insurance or paying tax.

Verrilli: so zero'ing out the tax made that inoperative

Gorsuch: What about commerce clause?

Verrilli: the mandate is inoperative, we don't need an enumerated constitutional power

[stream dropped out for a minute]

Kavanaugh: severability, 'I tend to agree with you, very straightforward under our precedent' we'd excise the mandate, leave the rest of the act, you agree?

Verrilli: 2017 Congress would've preferred that

[!!!!!]

Verrilli: ACA has been law of land for 10 years, HC sector has reshaped in reliance on the law, millions of Americans rely on the law. To assume Congress put all of that at risk in '17 is to attribute to Congress a recklessness you, as a court, shouldn't do

Verrilli: Only an extraordinarily compelling reason could strike down the law. There isn't one.

Hawkins is arguing for Texas now

Roberts: on severability, hard for you to argue Congress intended entire act to fall if mandate was struck down, 2017 Congress didn't try to repeal rest of act, they wanted court to do that, but that's not our job

[!!!!!!!]

Roberts: Congress left rest of law is 'compelling evidence' on the rest of the law.

[holy shit]

Roberts: You talked about findings in leg text, you treat them as if their inseverability clause. Doesn't look like a severability clause anywhere else in the US Code to me

Hawkins: there's no magic words requirement.

Thomas: "we're shadow boxing a bit here" the individual mandate now has no enforcement mechanism, hard to determine what the threat of an action against you is? whats your injury

Hawkins: we've offered 7 different basis for standing. Easiest is injury that states have suffered - CBO says requiring people to sign up for health insurance would lead people to do so, people will sign up for Medicaid who otherwise wouldn't

Thomas: at what stage would you determine inseverability? should we do it at standing? I look at it as statutory construction, more suitable for merits stage

Breyer: many statutes are essentially precatory (why isn't that the mandate), example "plant a tree day"

Hawkins doesn't want to answer the question

Breyer: is annoyed. wants an answer to his question

Hawkins: this isn't a suggestion, it's the law. that you must purchase health insurance.

Alito: two "quick questions" on standing

increased Medicaid cost, what happened if you didn't calculate Medicaid eligibility based on MAGI?

Hawkins: we don't know, we haven't tried

Alito: does the ACA set out any penalties?

Hawkins: I don't know of one

Alito: question about the anti-injunction act

Hawkins: [audio dropped for me] states themselves have to spend money, that gives them standing (if I'm hearing correctly)

Sotomayor: you assume some people would comply voluntarily with the legal command, the individual mandate. CBO report predicted that only small number of people would do that - opposite of what CBO said in '09. You have to prove that small number would include

people who didn't enroll in Medicaid / CHIP when it was a legal requirement when it was a tax, but would do so now, after the tax was zero'd out. Common sense would say to me "huh??"

Sotomayor: In NFIB we said at least four times individuals can't be compelled to buy insurance under commerce clause. Individual plaintiffs here still believe there's a command, contrary to NFIB. (Why are you entitled to greater relief that what NFIB gave you?)

Hawkins: [he's not even really trying here - he knows he can't get sotomayor]

Kagan: I'm not sure I understand your position. (lol). Congress has made law less coercive than it used to be. How does it make sense to say what wasn't an unconstitutional command is not unconstitutional when the law is less coercive

Kagan is trying to get him to answer her question, he doesn't want to. He wants to answer a different question

Kagan: Are you saying poor people were subject to a command when everyone else had a choice [there was no tax penalty if you were poor]

Kavanaugh: severability, if the mandate can't be justified, under precedent it seems fairly clear the proper remedy would be to sever mandate and leave the rest in place, how do you get around precedents on severability

Kavanaugh: inseverability clauses are usually very clear. precedent says what they look like. congress knows how to write an inseverability clause, that's not the language they chose here

Kavanaugh - it sure seems congress wanted to protect provisions for people with preexisting conditions

https://secure.actblue.com/donate/mattbcga

Healthcare is *still* on the ballot

Join us! Contribute today.

https://secure.actblue.com/donate/mattbcga

Barrett: [back on individual and state standing]

Wall is arguing for Trump's DOJ

Roberts: standing question, basically wouldn't your argument basically get rid of standing requirement

Thomas: at what stage should we confront inseverability? should we do it at standing? I think it seems more like statutory construction issue you consider at merits stage

Wall: the government agrees.

Wall makes push on inseverability

Breyer: merits, i have a different understanding than Kavanaugh. There's nothing in the code that says 'buy war bonds or plant a tree or clean your yard'

Wall: concedes there's precatory language in the Code

Breyer: how is it you know that the mandate, without any penalty, is something more than a supplication or entreaty?

Wall: it's a "shall" command in the ACA

Breyer: you had someone read through the entire US Code, and you discovered there's no precaroty language with shall - I remember when I used to work there, we had plenty of precatory statutes that used shall

Wall: I cannot vouch that I've read the US Code

Breyer: I haven't either

I love Justice Breyer

Breyer: have you ever said to anyone in your family, "you shall do it" but it's an entreaty

Wall: in my family when I tell my kids they shall do something that's a command backed by a penalty

Alito: perhaps there's a difference between a supplication and a tax.

There's been a chance in understanding of role of mandate. At time of NFIB there was reason to believe it was like an essential part of plane, plane would crash without.

Alito: now it's like, the part has been taken out and the plane hasn't crashed.

Sotomayor: do you concede congress can enact taxes with delayed start dates or that phase out in the future?

Wall: yes, absolutely

Sotomayor: let me finish counsel [Sotomayor, J shall not be talked over]

Sotomayor: if congress had in this TCJA provided that shared responsibility would be 0 for first three years, but would have started in the future, would that have been ok?

Wall: yes

Sotomayor: what's the difference between that and Congress deciding they're not collecting a tax. If Congress has the power to delay, extinguish, to restart, why is this any different?

Wall: All those other provision are written as taxes, here, once you eliminate the revenue raising function, this can no longer be construed as a tax.

Kagan: [standing question]

Wall: tries to say "we haven't taken a position"

Kagan: I'm asking you to take one right now

Kagan: leg text has gotten huge, omnibus bills, you're opening floodgates

Wall: we'd be worried if we thought floodgates were going to open.

https://secure.actblue.com/donate/mattbcga

Healthcare is *still* on the ballot

Join us! Contribute today.

https://secure.actblue.com/donate/mattbcga

Gorsuch: talk more about floodgates

Wall: going to be hard to make out inseverability claim - we don't see people challenging single provision of omnibus acts for that reason

Kavanuagh: Breyer rightly points out US Code has a lot of precatory in it. Why not just construe this as like those precatory statements strewn through the code?

Wall: essential feature of saving construction was that it raises revenue (mandate is a tax)

Kavanaugh: severability, we have strong background presumption of severability, clear default rule. Congress knows how to write an inseverability clause. This is different form how that usually looks. Respond?

Wall: "there are no magic words" - it's not written in the way that a inseverability clause is normally written, but it's the equivalent of a targeted inseverability clause

Wall gets a minute to wrap up

Mongan's rebuttal time now

Because of the phone format, Mongan isn't going to get peppered with questions during this short rebuttal time period

Mongan talking about the "life saving benefits and protections" of the ACA. In 2017 Congress debated whether or not to keep the ACA. They decided to keep it.

The case is submitted.

Going to collect my thoughts on what we just heard and share a few highlights.

tip jar? This - fund Georgia runoff. https://secure.actblue.com/donate/mattbcga

Healthcare is *still* on the ballot

Join us! Contribute today.

https://secure.actblue.com/donate/mattbcga

Going to give my initial thoughts on the oral argument we just heard in the ACA case – I'm going to highlight things that seemed most important to me.

Important note: none of the Justices are bound by what they said in oral argument. We're kinda reading tea leaves.

Going to talk first about "severability"

This is ? of "if the Court decides 1 part of the ACA (the individual mandate) must be struck down, what happens to the rest of the law? Is the entire law struck down? Or can the individual mandate be cut out (severed), saving the rest?"

"On the severance question, I think it's hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to 0 did not even try to repeal the rest of the Act." [cont]

"I think that, frankly, they wanted the Court to do that, but that's not our job" - Chief Justice Roberts

On severability, what Congress intends matters a great deal.

What do I mean? If Congress says "courts, if you strike down any provision of this law, we want the whole thing struck down" then that's what the courts will do.

Congress communicates that, about any particular law that they pass, to the courts by including an "inseverability clause" in the text of the law. The law will literally say 'no part of this bill is severable from any other part'

The GOP are arguing against severability, they want the entire ACA struck down. Roberts, in that clip is saying, it's "hard to argue" that "Congress intended the entire act to fall if the mandate" if the court strikes down the mandate.

In other words, he doesn't seem to buy it

Congress explicitly telling the courts "this isn't severable" isn't the only thing the court looks at though. If a part of a law is 'essential to the operation' of the whole, and that part is truck down, then the court assumes Congress would want the whole law struck down.

"The feature of this case that has a strange aspect is the sea change that's occurred in the understanding of the role of the individual mandate between our first affordable care act case and today. At the time of the first case, there was strong reason to believe

that the individual mandate was like a part in an airplane that was essential to keep the plane flying. So if that part was taken out, the plane would crash. But now the part has been taken out, and the plane has not crashed.

So if we were to decide this case the way you advocate how would we explain why the individual mandate in its present form is essential to the operation of the act." - Justice Alito

The premise of Alito's question is that the ACA has been running, essentially, without the individual mandate, so how can you argue that the individual mandate is essential to the ACA? (bc if the mandate were essential, it wouldn't be severable)

Again, important to note that justices aren't bound by anything they say in oral argument. We are, essentially, trying to 'read tea leaves' as the saying goes, based on the ?'s they ask.

But, this question seems to indicate Alito doesn't buy the severability argument

There's also an issue about whether Congress included a secret inseverability instruction in the text of the ACA.

Congress often includes "factual findings" in legislation. The district court judge who heard this case interpreted one of those findings as an inseverability clause

"Then we go to severability, I understood your opening comments to say that the findings in the original act are, in essence, the equivalent of an inseverability clause. I just want to test that for a second...as you know, we have a strong background presumption of severability

which reflects longstanding understanding of how congress works, our respect for congress' legislative role under article 1, and it also establishes a clear default rule, or fairly clear default rule, against which congress can legislate.

congress knows how to write an inseverability clause but this language is different from how that usually looks, so I just want to give you an opportunity to respond to that" - Kavanaugh

Again, justice aren't bound by what they say at oral argument, their questions don't necessarily tell us how they will decide any given issue.

This question raises the "factual finding is actually an inseverability instruction" issue.

That may indicate that Kavanaugh is inclined to agree that the factual finding isn't a severability instruction, but it might also mean the opposite –Kavanaugh may believe that the finding is a severability instruction and wanted to give time to a friendly lawyer to address it

If a majority of the Justices believe that the individual mandate is actually severable, then they can strike the mandate down, but leave the rest of the ACA in place.

That would be a win for us.

And, based on my read of argument today, Roberts and Alito seem, at least, to be fairly skeptical of the notion that the individual mandate is not severable.

But, again, it's impossible to actually tell. That's why I'm careful to hedge my language here.

instead of a "tip jar" https://secure.actblue.com/donate/mattbcga

Healthcare is *still* on the ballot

Join us! Contribute today.

https://secure.actblue.com/donate/mattbcga

(there were, of course, other issues discussed - a lot of time was devoted to standing, for example. But I have a zoom right now)

Latest Threads Unrolled: