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Chief Justice Roberts just asked House Counsel Verilli about how "eight years ago" the individual mandate in the ACA was vital. Roberts asked "Why the bait and switch?" He then asked if they were "talking about broccoli for nothing?"
In truth it was a bait and switch and Roberts fell for it. Verrilli insisted that we are allowed to "learn from our mistakes." In other words, you can ignore everything we said before. https://jonathanturley.org/2010/03/31/is-the-individual-mandate-constitutional/
Thomas is asking a question! He is also raising whether the Court was played by the Obama Administration in claiming that the individual mandate was the ACA's "the heart and soul." It used that argument to secure the ruling of constitutionality but it is now shrugging it off.
They are having weird telephone problems. Breyer seemed to be just cut off and Alito brought in. It sounded like Breyer said the problem is with "the machine." A more generational than judicial moment, I think.
...Justice Kagan is noting that, while they are now claiming that the individual mandate is not essential, there remains "relics" of the earlier position. It is an odd argument where Verrilli is arguing to support the ACA by opposing the earlier argument for the ACA.
Justice Gorsuch is hitting the tax rationale (that Roberts previously embraced to save the ACA) and again raising a bait and switch to now preserve the Act. https://jonathanturley.org/2012/06/29/et-tu-roberts/
Kavanaugh said that this is a very straightforward case in favor of severibility. That is consistent with what many of us said in noting that Kavanaugh and probably Roberts were already likely to vote against striking down the entire act.
...Kavanaugh's statement again shows that the claims of the Democratic senators (with the huge pictures of ACA beneficiaries) was detached from the legal realities. If the justices favor severability, ACA survives. https://jonathanturley.org/2020/10/22/the-barrett-boycott-democrats-struggle-to-get-an-empty-sack-to-stand-up/
Chief Justice Roberts just joined Kavanaugh in referring to the "compelling evidence" in support of severability. The media fueled the unsupported claim in the Barrett confirmation that the ACA was about to be struck down and that Barrett was part of a grand conspiracy to do so.
Thomas is again asking a question! This could be a record in the making. Thomas is pushing the challengers on the basis for even claiming injury for standing.
