Affordable Care Act

Live Blogging California v. Texas (Updated)

High points and low points of today's oral argument in the latest Affordable Care Act case. (Updated with some summary conclusions.)


Today the Supreme Court hears oral argument in California v. Texas. In this post I am live blogging the oral argument, identifying questions and responses that are interesting or potentially important. My last case preview and prior posts on this litigation are available in this post from last night.

Note that the justices question the advocates seriatim, so it is more difficult to know how justices are leaning, as they will all probe both sides. That said, upon the conclusion of the argument, it appears there are at least five votes to uphold the ACA. Both the Chief Justice and Justice Kavanaugh expressed profound skepticism of the inseverability arguments. This is not surprising.

Another significant takeaway from the argument is that several of the justices are quite interested in the standing question. Most of the questions posed to the intervenor states at the outset concerned standing, and the justices returned to the issue repeatedly. Some were quite skeptical of the standing claims, and were puzzled by the Department of Justice's acquiescence to standing through alleged inseverability. If the Court decides this case on standing, however, it will likely require votes from both liberal and conservative justices, with an eye toward how such a ruling will affect the doctrine in future cases.

What follows  (below the jump) is my summary of the argument as it was occurring.

First up is California Solicitor General Michael Mongan, on behalf of the intervenor states seeking to defend the ACA, stressing that the individual mandate does not operate as a mandate, but rather offers a choice, as the Court had concluded in NFIB v. Sebelius.

Chief Justice opens questioning with standing: Does someone who fails to purchase insurance violate the law? No, says Mongan. What if they later apply for a job and are asked whether they have ever violated the law? No one has made such a claim of injury here, notes that relevant precedent requires a prospect of enforcement. Standing is on the Chief's mind (as it appears to be on the minds of others).

Justice Thomas follows up on standing questions, wondering whether opprobrium from failing to follow the law might be sufficient to establish standing. As Mongan notes, no such claim was alleged here. No such harm has been asserted. Justice Thomas also raises question of how standing, statutory interpretation, and severability should interact.

Justice Breyer asks about the Department of Justice's theory of standing. Mongan notes this is a "novel" theory of standing that would enable all sorts of litigants to use the alleged infirmity of the mandate to challenge any other part of the law they don't like, e.g., restaurants could use this theory to challenge the calorie count disclosure requirements.

Justice Alito turns to state theory of standing, asking whether they could seek a declaratory judgment. As Mongan notes, the provision  Texas cites as its alleged injury is a separate provision of the statute, not the mandate, so does not establish standing to challenge the mandate. Justice Alito pushes back a little, but Mongan holds to his position, nothing that Texas has not alleged any argument about why the provisions that allegedly harm Texas are themselves unconstitutional.

Justice Sotomayor helps Mongan underline the point, and then asks for best argument that the mandate, Section 5000A, is not a command. Mongan obliges, and they have a back and forth on whether 5000A actually mandates than anybody does anything. Mongan further notes Texas offered no evidence that amendment to Section 5000A imposes any additional costs on Texas, as is required of parties claiming standing at summary judgment.

Justice Kagan keeps the discussion on standing—the Court really seems to care about this. She asks whether Texas can assert standing on the basis that more people may enroll in other programs as a result of the mandate, even if it is not enforced. While Justice Kagan is a near-certain vote against the plaintiffs, it is not clear she wants the Court to decide the case on standing grounds. If there are two or three votes to dispatch this case on standing grounds, this will present an interesting conundrum for the more liberal justices, who like more permissive standing rules, but clearly want this case to fail.

Justice Gorsuch asks whether the United States could bring a civil enforcement action to enforce the mandate. Mongan rejects this claim because NFIB said there was no legal consequence from failing to comply with a mandate other than paying the tax penalty. But what if? Justice Gorsuch asks. Mongan responds noting that the Court's standing cases claim that there still needs to be a reasonable prospect of enforcement for there to be jurisdiction, but also notes that the state intervenors are happy to press their claims on the merits. Justice Gorsuch asks additional questions about Texas' claims, including the implications of the CBO report indicating that some people may acquire insurance because of the mandate despite the lack of a penalty.

Justice Kavanaugh returns to individual standing, asks whether someone could challenge a law declaring that every homeowner should fly an American flag in front of their house, if the law lacked any enforcement provision. Mongan says there might be plausible claims, perhaps raising First Amendment claims, but no such arguments were made here. Justice Kavanaugh asks whether there are any other provisions of federal law imposing a mandate without penalty. Mongan says no. Turning to the merits, Kavanaugh asks whether 5000A can still be read as a tax if it does not raise revenue.

Justice Barrett asks whether it is relevant that the mandate was not repealed. Mongan responds that Congress understood 5000A offered a choice (as the Court had said in NFIB) and  merely altered the consequences of the choice. On the standing front, Barrett asks whether the analysis would be different if the government maintained a record of whether or not individuals were complying with the mandate. Mongan notes that's not at issue here, and then pivots to note that even if plaintiffs have standing, declaring that the mandate is not enforceable against them would fully redress their injuries.

Former Solicitor General Donald Verrilli (who defended the ACA in NFIB v. Sebelius) is up next, representing the House of Representatives. The Chief Justice opens up asking why the mandate is not as important now as Congress claimed in 2010. Verrilli notes that Congress in 2010 made assumptions based upon what it believed at the time, but that Congress in 2017 made a different judgment, based upon CBO's updated assessment that the market would remain stable with or without an enforceable mandate. Asks whether Verrilli agrees the paperwork burden on states is enough for standing.

Justice Thomas asks whether zeroing out the penalty, without more, was enough to make the mandate a less central provision of the ACA than it had been in 2012. As Verrilli notes, this question goes to the heart of the severability issue. Verrilli notes that plaintiffs' claims about what Congress wanted are implausible, stressing that Congress in 2017 acted based upon the understanding that zeroing out the penalty would have the same effect as repealing the mandate. Further, Verrilli notes, those who supported zeroing out the mandate proclaimed they were eliminating the mandate, which is inconsistent with any claim that Congress believed continued moral suasion was necessary to keep the law operable.

Keeping on the severability theme, Justice Breyer stumbles through the start of a question, seeming to have some technical or other problems, and is cut off by the Chief Justice. (Awkward.)

Justice Alito asks about whether standing may be asserted through purported inseverability. Verrilli notes that there is no precedent for this, and points out that if the Court were to embrace this sort of theory of standing, it should not be married with a presumption of inseverability at the standing phase, as this would be an open invitation for advisory opinions. Justice Alito turns to asking why the focus should be on the 2017 Congress, as different members of Congress may have had different assumptions or intentions. Verrilli responds that Court should focus on objective factors when assessing severability (as in the Barr v. AAPC case). Also notes it would be odd for Court to assume that members of Congress knowingly and deliberately intended to enact an unconstitutional amendment to the ACA.

Chief offers to go back to Breyer. Breyer declines.

Justice Sotomayor lobs softballs about implications of zeroing out the mandate. Then asks Verrilli to address whether states would actually have lower paperwork costs if mandate were struck down. Verrilli notes there is no evidence of such costs, which was their burden at the summary judgment stage.

Justice Kagan notes there were many changes in the ACA since 2012, but that "relics" of the view that the mandate is essential remain, such as the findings that the mandate was essential. Verrilli notes (as I pointed out here) that the findings are not an inseverability clause, and should not be read as such. Further, a finding about what the law said and did in 2010 cannot be read as a finding about how the law operates after various amendments, and the 2017 Congress could not agree that a mandate backed by a penalty was essential because the 2017 Congress zeroed out the penalty. There was no need to go back and amend the finding, as it was not an operable provision of law.

Justice Gorsuch asks Verrilli to set aside standing and severability and focus on the merits. Specifically he asks whether the saving construction of the mandate can remain operable now that the penalty no longer produces any revenue. Verrilli walks through how the mandate does not have any effect, so there is no more need for an enumerated power than if Congress were to enact a hortatory provision. Verrilli concedes that he is not relying upon the existence of commerce clause authority to impose a mandate. (This is an important concession and one that I doubt the House of Represenatives' usual attorney would have made.)

Justice Kavanaugh follows up on Gorsuch's questions. Verrilli explains that, under the Necessary & Proper Clause, Congress needs to have the ability to raise, lower or zero out tax provisions as times require. Justice Kavanaugh turns to severability and notes he tends to agree with Verrilli that the severability analysis in this case is "rather straightforward." (This is not surprising given Justice Kavanaugh's own prior opinions and statements on severability.) Kavanaugh asks about how severability should apply to original law.

Justice Barrett asks whether Congress is bound by a Court's avoidance construction of a statute. Is Congress locked in by this? No, Verrilli says, but Congress is presumed to be following and accepting the Court's interpretation of a statute unless it explicitly says otherwise. (Put another way, if Congress wants to overturn the Court's statutory interpretation, it has to be clear about that.) Justice Barrett pushes back, asking whether zeroing out the tax requires an assumption that Congress was leaving a mandate in place that could only be justified by the Commerce power. Verrilli notes that no one made such arguments at the time, and emphasizes that if any member of Congress sought to impose a command in 2017, someone would have said so. No one did.

Texas Solicitor General Kyle Hawkins is next, and he  lays out the plaintiffs' claims. (I had thought the SG was first. Oops.) Hawkins claims that those defending the ACA are asking the Court to ignore provisions of the U.S. Code based upon extra-textual considerations.

The Chief Justice expresses substantial skepticism about the inseverability argument. Congress did not vote down the entire statute, perhaps wanting the Court to do that, but "that's not our job." This is a pretty clear indication he is unpersuaded by the plaintiffs inseverability claims, which is not surprising. Chief also notes that the findings don't read like an inseverability clause and do not resemble any such clause anywhere else in the U.S. Code.

Justice Thomas returns to standing, noting there is no enforcement mechanism for the mandate and asking how there can be an injury without enforcement. Hawkins claims the clearest basis for standing is the fact that the existence of the mandate means that a non-zero number of people will enroll in Medicaid and other programs than would have otherwise, and this imposes costs on states. Hawkins is correct that this is the strongest theory in support of standing. Justice Thomas also asks when the Court should evaluate the severability claims.

Justice Breyer is on the call now. He asks about the merits. Can you sue just because a statute has some sort of admonition in it? Are precatory enactments by Congress open to challenge? Hawkins says it depends. Breyer asks whether such admonitions, lacking enforcement mechanisms, can be challenged, and whether this would create lots of new opportunities for litigation. Hawkins insists that 5000A is different. "It is the law" that people are required to obtain qualifying health insurance.

Justice Alito returns to standing, asking what would happen if Texas did not fulfill its obligations to new enrollees in Medicaid and other state-financed programs, and asks about how theories of standing interact with the Anti-Injunction Act, which precludes pre-enforcement challenges to tax provisions.

Justice Sotomayor follows up on standing, asking about whether those who enrolled post-2017 would not have enrolled prior to 2017 due to other provisions of the ACA and other exogenous factors. Hawkins responds arguing that Texas's standing argument is no less speculative than the standing theory accepted by the Court in the Census case. Sotomayor says his answer does not make sense. Turning to the merits, Justice Sotomayor notes that NFIB barred the imposition of a mandate under the Commerce Clause, and asks how the Court declaring that a second time would somehow entitle the states to greater relief, and striking down additional portions of the statute. (Note that unlike some academics, no justice on the Court seems to believe that NFIB failed to hold that a mandate exceeds the scope of the Commerce Clause.)

Justice Kagan asks how it could be Congress made the ACA more unconstitutional by making the relevant provisions less coercive. If, at the end of the day, NFIB upheld 5000A, how could it become unconstitutional when Congress makes it less coercive. Hawkins responds this is because the saving construction is no longer operative. Justice Kagan asks whether those who were exempt from the mandate penalty at the time of NFIB had a valid claim against the mandate. Hawkins thinks so. Justice Kagan says his response has things "precisely backwards."

Justice Gorsuch sticks with the merits, asking Hawkins to respond to Verrilli's argument that, under the Necessary & Proper Clause, Congress must retain the ability to raise and lower taxes. Hawkins says the provision cannot be a tax because it does not raise revenue, and that to accept Verrilli's argument is to turn the taxing power into a de facto police power. Turning to remedies, Justice Gorsuch asks what injunctive relief plaintiffs are asking for and can be provided by the Court, and whether a declaratory judgment by itself is enough for jurisdiction.

Justice Kavanaugh asks Hawkins whether there are any other naked mandates in the U.S. Code, and Hawkins says he is unaware of any. Turning to severability, Kavanaugh says that, under the Court's severability precedents, it would seem "fairly clear" that the Court is required to strike down the mandate and nothing else. Hawkins responds relying upon the congressional findings. Kavanaugh interrupts noting that inseverability clauses are typically very clear; "Congress knows how to write an inseverability clause," he says, adding that he is "having trouble" reading the findings as an inseverability clause.

Justice Barrett circles back to standing for the individual plaintiffs, asking how the alleged injury of voluntarily purchasing insurance is traceable to the federal defendants. Given the lack of enforcement action by any federal issue, isn't it Congress that caused this harm? And how can you sue Congress? On state standing, Barrett also renews questions about the paperwork requirements, and how these alleged burdens are traceable to the mandate.

Last up is Acting Solicitor General Jeffrey Wall. The opening question from the Chief returns to standing, and the DOJ's unusual standing argument, which would allow a party injured by one legal provision to challenge other provisions. Wall argues that there is no floodgates risk here because it is rare to have such a clear indication of inseverability as there is here. The Chief Justice pushes back, showing skepticism of the argument. Wall replies stressing the individuals' injuries caused by the insurance market reforms (but not by the mandate).

Justice Thomas renews his question about when to consider severability, at the merits or at some other stage. Wall embraces the premise of Justice Thomas's question, that severability should be a question of statutory interpretation to be assessed at the merits stage, rather than at standing or remedies. Stresses that most provisions of most statutes are severable, and this is the rare case where there is inseverability.

Justice Breyer asks whether there is precatory language in the U.S. Code. Wall accepts that there is, prompting Breyer to ask why the mandate is not simply an entreaty, as opposed to the imposition of a legal obligation. Wall says that 5000A uses the word "shall," and that makes the difference. Breyer asks whether any of the various precatory provisions enacted include the word "shall," and Wall confesses he does not know, but that the SG's office is not aware of any such statutes. So, Breyer responds, it all comes down to "shall" versus "should."

Justice Alito follows up asking whether Congress has ever used the taxing power to say that someone must do something, and then sets the tax at zero. Wall says he is not. Justice Alito pivots noting the "sea change" in the prevailing view of the mandate. In 2010 it was essential, but is not viewed that way now. How is the mandate still essential to the operation of the Act? Wall responds relying upon the findings as a de facto inseverability clause, noting this language has not been changed by Congress. Says that zeroing out the penalty is "less coercive in a sense," but is also "more coercive" in that it subjected people to a naked mandate.

Justice Sotomayor asks whether the federal government has the authority to enact taxes with delayed effective dates or temporary phaseouts. Wall says Congress does. So does this mean Congress could have enacted a statute in 2010 providing for a phase in of tax in 2014 and a phase out in 2019, would that be constitutional? Yes, Wall says, but had something like that been done, it might have precluded the conclusion that the mandate penalty could operate as a tax. Sotomayor's question hints at how the plaintiffs' and DOJ's theory would constrain Congress's exercise of its taxing powers, and potentially allow one Congress to bind its successors.

Justice Kagan asks for DOJ's view of the plaintiffs' standing theories, and Wall is hesitant, stressing that the only standing theory DOJ has endorsed is its standing-by-inseverability theory. Justice Kagan notes this is very odd because DOJ is usually a hawk on standing, and here the DOJ is not passing judgment on the asserted bases of standing offered by the plaintiffs, and is instead asking the Court to embrace a new approach to standing that has broad, unsettling potential and "cuts against" the Court's doctrine. Wall claims his approach is grounded in Alaska Airlines. Kagan is unconvinced. This is based on a misunderstanding of Alaska Airlines (as Kevin Walsh pointed out in his Stanford Law Review piece on NFIB and related litigation).

Justice Gorsuch gives Wall more time to explain why DOJ does not believe its approach will "open the floodgates" to various constitutional challenges to federal statutes. Wall reiterates the point that the ACA is relatively unique because of the findings that operate as an inseverability clause.

Justice Kavanaugh returns to the question of precatory language in the U.S. Code. Even if this language is different, why couldn't the Court just construe this language as being the equivalent of such precatory language throughout the U.S. Code. Wall responds with a deflection, arguing that this gets in the way with NFIB's saving construction. This misses the point. Kavanaugh is suggesting a different sort of savings construction. Kavanaugh then turns to the strong presumption of severability, reiterating that Congress knows how to write an inseverability clause" and this language is different, and seeks Wall's response. Wall acknowledges that the language is different, but that there is no "magic words" requirement, and that the findings here operate as an inseverability clause.

Justice Barrett asks whether it is indisputable that NFIB held that a mandate is beyond the scope of Congress's Commerce Clause power, and Wall says that NFIB is clear on this point (contra the claims  of some academics). Accepting that premise, and that "shall" means "shall," would it not then be odd to assume that Congress amended the ACA in 2017 to make 5000A uncosntitutional? Is that not assuming that Congress sought to act unconstitutionally? Wall says this is a valid point, but is no excuse to depart from the clear text of the statute.

[Note, I've revised the post at the top to include some summary comments.]

NEXT: Today in Supreme Court History: November 10, 1975

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “If there are two or three votes to dispatch this case on standing grounds, this will present an interesting conundrum for the more liberal justices, who like more permissive standing rules,”

    I don’t know that you can say that anymore.

    Over the past few years, it seems more and more that conservative jurists would be more than happy to resurrect SCRAP et al, while moderate and liberal jurists are more likely to enforce Lujan.


    1. Almost like rules depend on whose ox is being gored.

      But we would not be THAT cynical, would we?

      1. Well, not necessarily.

        Look, I am not naive enough to think that the judiciary and politics have no relation to each other. But (as we have discussed), it has become much more results-oriented.

        Some hallmarks of so-called “conservative” jurisprudence (such as standing requirements, or heightened pleading standards) have become internalized into general jurisprudence.

        I would go so far as to say that, to the extent that any one wants an activist judiciary, legislating from the bench, they will seek lower standing requirements.

        In other words, there is a distinct difference from the older, small-c conservative judiciary, and a more partisan, Republican/Federalist judiciary. IMO.

  2. Legal merits aside (there are none, but whatever) I still can’t get over how morally bankrupt this entire thing is. It’s completely sociopathic. Absolutely zero regard for how many people are harmed in order to redress this “injury.”

    Let’s say your parents said to clean your room, but they weren’t going to ground you or deduct your allowance, or do anything to you if you don’t actually do it. But because you felt aggrieved by this command, you decide to ask your friend to help you burn down every house on the block. Everyone would correctly assume you were a dangerous psychopath.

    Now, let’s say that Congress tells you to get health insurance, but isn’t going to do anything, imprison you, fine you, or tax you if you don’t. You feel aggrieved so you ask a court to instantly get rid of the health insurance of millions of people who are not parties to the case and put millions more at risk of losing their insurance, never being able to obtain it, or having yearly and life-time caps reimposed. Why aren’t you also a dangerous psychopath without any sense of moral responsibility?

    1. The Bush Republican Party—the party that shipped your good manufacturing job to China, sent your child to asinine wars, let Mexicans take the construction jobs in the Sun Belt, and stuck you with an underwater house!! And then a GOP “hero” saw the carnage left by W Bush and saw a market to exploit by selling off brand beef stew in a can along with a bunch of cheap Chinese made crap at his dollar stores. And now another GOP hero is trying to take away the most basic access to health care—Obamacare!?!

      When Trump is gone remember that Trump actually ran against the Bush Republican Party, and yes he failed to deliver and his rhetoric was divisive, but at least he gave voice to people America has treated like crap for the last 20 years.

    2. “Legal merits aside (there are none, but whatever) I still can’t get over how morally bankrupt this entire thing is.”

      Is it also morally bankrupt to let a guy walk on a child porn charge, rape, or murder, etc. because the evidence is thrown out? I don’t think it should be controversial that the judges follow the law, and if its defective then Congress should fix it, if there are the votes.

      Nobody should want judges enforcing their moral codes instead of the law.

      1. It is morally bankrupt for the plaintiffs to seek this remedy. If the law let you burn down your neighbor’s house if a different neighbor stepped on your lawn, pursuing that remedy would obviously be morally wrong regardless of the fact that it is allowed.

        1. Just remember, Kazinski is a Republican that pretended to support Trump and is now probably sending money to two globalists in Georgia that got rich shipping American jobs to China. And after Loeffler and Perdue made millions shipping jobs to China Dollar General hired David Perdue specifically to use his expertise to develop supply chains in China with the goal of selling off brand beef stew in a can to the poor saps whose jobs he shipped to China!?! So David Perdue’s America is one in which Americans live in a trailer park and eat off brand stew with off brand saltines while watching “Mama’s Family” reruns all the while having no health insurance! #MASA!, make America shitty again!!

          1. I did support Trump, and even contributed to his campaign in a large enough amount to show up in the campaign reporting databases.

            But I am also a free trader, and spend 1/2 the year overseas when we don’t have pandemics. I can see how much globalism has helped the standard of living in SE Asia in just the last 10 years. American deregulation has helped enormously too with fracking making a huge difference in the energy bills for poor people, and saving literally millions of lives(according to the UN) by making propane affordable enough to replace cooking with wood and animal dung.

            Americans are doing just fine, and at least some of it is due to Trump, and I applaud that. But I am quite happy to have my underwear and T-shirts made in Cambodia and Bangladesh and help those people improve their lives, as shitty as those jobs are. Because it eventually leads to jobs making hard drives and motorcycles as in Thailand and Vietnam.

    3. There is no way that you can prevent such litigation. Live with it and move on.

      1. Live with it and move on? What’s that supposed to mean? I’m just supposed to ignore the moral implications? I shouldn’t criticize it? I shouldn’t draw negative inferences about the character of the plaintiffs, their lawyers, and the people who support it? I’m just supposed to not say anything? If that’s what you are inviting me to do, I decline the invitation. If I think pursuing a particular legal case is immoral, I am going to say so, whether I can prevent the case or not.

        1. you can criticize it all you want. You can feel as indignant as you want. Neither will matter one iota. So yes, live with and focus on what you can do that has the possibility of making a difference

  3. There is no way Roberts will admit that he was wrong in NFIB or in King.

    1. Um, what? This isn’t about admitted he was wrong.

      This is about the effect of zeroing out the mandate. Which has real legal issues in terms of standing and severability, before you get pesky things like “merits.”

      1. This case also hinges in part on the idea that Roberts was right in NFIB: he held the mandate violates the commerce clause.

        1. How could he not be right? He had 5 votes that the mandate violates the commerce clause.

          Adler’s note above:
          “Note that unlike some academics, no justice on the Court seems to believe that NFIB failed to hold that a mandate exceeds the scope of the Commerce Clause.”

      2. True severability and standing are important issues in this case along with the whatever is the correct holding will have an effect on future cases. I have no opinion or what should be the correct holding on either issue.

        My reference was to Roberts errors in the NFIB & King. Roberts had to mangle both NFIB & King in save ACA. As such, he has boxed himself into a corner which he needs to defend and as such, the legal rationale in the eventual holding has a high likelihood of being compromised.

        1. I am no fan of Roberts’ reasoning in NFIB, but per Adler’s summary of what Kavanaugh said (Kavanaugh is suggesting a different sort of savings construction) I think a holding that the mandate is constitutional causes no future concerns.

  4. Verrilli concedes that he is not relying upon the existence of commerce clause authority to impose a mandate. (This is an important concession and one that I doubt the House of Represenatives’ usual attorney would have made.)

    Given NFIB it strikes me as a necessary concession.

  5. “Justice Kagan is a near-certain vote against the plaintiffs”

    Ah, you have a sense of humor.

  6. One of the plaintiffs’ arguments for standing is that the mandate causes people to buy more insurance, which results in people buying more insurance, which imposes costs on states.

    Suppose the Predident made a speech urging people to buy more insurance. Would that act be an injury creating standing to sue?

    What if an insurance company ran an advertisement. Would that create standing?

    Like the Ferengi Rules of Acquisition, absent enforcement the “mandate” is nothing more than a marketing campaign. Who would buy the book if it was called Ferengi Acquisition Advice? Who would listen to Congress of they had enacted a Insurance Suggestion?

    Speech alone rarely causes injury conveying standing. And marketing gimmicks are just a kind of speech. Perhaps more so than other kinds. it could be argued that even absent the First Amendment, the Speech and Debate clause prohibits mere congressional suggestions from resulting in standing for court cases.

    Absent enforcement, how Congress chooses to decorate its statute books is more more anybody else’s business than the kind of art it chooses to put on its walls.

    1. Correction: The term is marketing ploy.

    2. I’ll admit, I had to look up Ferengi Rules of Acquisition. Nice reference. Another detour to VC worth the time I lost from work!

  7. “Keeping on the severability theme, Justice Breyer stumbles through the start of a question, seeming to have some technical or other problems, and is cut off by the Chief Justice. (Awkward.)”

    This procedural irregularity makes any decision issued by the Court with respect to this matter deeply illegitimate to millions of Americans . . . and furthermore calls into question the entire Supreme Court system as operated by the Deep State.

    Stop The Argument!

    1. Fake reverend, fake lawyer, fake poll watcher.

    2. The real Kirkland is never this funny. Who are you and what did you do with him?

    3. You never cease to have irrelevant indignation or pointless insults.
      What is illegitimate is your pretense at intelligent commentary.
      Carry on, troll.

    4. Yeah, this was a good one.

  8. Justice Kagan asks whether those who were exempt from the mandate penalty at the time of NFIB had a valid claim against the mandate. Hawkins thinks so. Justice Kagan says his response has things “precisely backwards.”

    This strikes me, along with the notion that those who were exempt from the penalty were breaking the law by going without insurance, as the best argument for why a zero-penalty mandate is not a mandate at all.

  9. Texas hasn’t expanded Medicaid so their strongest argument actually doesn’t apply in this instance because states have a choice on whether to expand Medicaid under Obamacare. Furthermore states hold themselves out as protectors of children residing in their respective states…so any shirking of responsibility by denying children and pregnant mothers access to health care would be inconsistent with the values Texas holds itself up as possessing.

    1. It’s still stupid, but I think what Texas is saying is that even without a Medicaid expansion, a person who meets the pre-expansion requirements for Medicaid might enroll in the program in response to the mandate, thus costing them money and thus giving it standing to challenge the mandate.

      1. Pre-expansion Medicaid in a state would be people Texas really wants to sign up for Medicaid—so pregnant women and children and the disabled. So if you hold yourself out as a protector of the innocents then you can’t complain when the innocents sign up for the health care you are offering them. Contrast that with Obamacare Medicaid expansion and Texans see the people that sign up for that as lazy hillbillies that are better off staying in West Virginia.

  10. the existence of the mandate means that a non-zero number of people will enroll in Medicaid and other programs than would have otherwise, and this imposes costs on states.

    Where is the proof of this? It doesn’t seem self-evident.

    1. I’m pretty sure Texas has a law that requires parents of minors to have some type of health coverage for their minor children.

  11. “liberal justices, who like more permissive standing rules, but clearly want this case to fail.”

    They just call balls and strikes, guys.

    1. Hey, Grampa Gompers! You have any other hoax videos you need to spread?

        1. Aw, I remember like it was yesterday (because it was) when you were angrily peddling the latest hoax video and yelling at Sarcastro because he correctly pointed out that it was a hoax!

          So I thought that you probably had some fresh BS to peddle, right? That’s what you are known for …. forwarding the same ol’ tired hoaxes that the gullible old people fall for. But instead of just sending them to your grandkids in ALL-CAPS in facebook, you have to post them here, too.

          Aren’t we lucky?

          1. I had figured these knuckle-draggers were clinging to childish superstition because they didn’t want to dishonor the parents who subjected them to indoctrination . . . but it now is apparent they are just gullible and ignorant at the core. There is no hoax too delusional, no argument too stupid, no grifter too outlandish to ensnare a Trump voter.

            That, coupled with the bigotry, explains the course of the American culture war.

  12. I mean, you almost have to admire the Trump DOJ.

    “The opening question from the Chief returns to standing, and the DOJ’s unusual standing argument, which would allow a party injured by one legal provision to challenge other provisions. Wall argues that there is no floodgates risk here because it is rare to have such a clear indication of inseverability as there is here. The Chief Justice pushes back, showing skepticism of the argument. Wall replies stressing the individuals’ injuries caused by the insurance market reforms (but not by the mandate).”

    It is generally recognized that the two biggest problems with this legal argument are standing and severability. In fact, that’s what we’ve been seeing in the argument so far.

    So what does the Trump/Barr (competence no longer required) DOJ argue?

    Well, there is standing. Because it’s clearly not severable. And since it is clearly and obviously not severable, there is standing because of this new thing we just thought of!

    I mean, you almost have to admire the sheer chutzpah.

    1. I think this argument that you need to reach the merits in order to establish standing violates the law of physics that once you travel into the future you can’t go back in time where you started.

  13. So we have a runoff election in Georgia that could possibly flip the Senate from R to D control.

    How many people here are willing to say that the Republican-loyalist members of the court are not aware of, or care about, the effect of destroying the ACA will have on that election?

    1. They won’t make a ruling until well after that.

    2. Doesn’t matter. As prior reply points out, decision probably won’t come out until after election. And, in any event, the plaintiffs’ claims are so weak that they’d be lucky to get one vote even from a Court in which none of the Justices considered politics.

      1. You don’t think the Handmaiden would vote against Satan on this one?

    3. The Republican justices will preserve political capital to overturn Roe.

  14. A circus, as predicted long ago in an administration not so far away. Memory sez the Senate gutted and amended a House bill to satisfy the requirement that revenue bills originate in the house, then passed it without any Republican support at all; so much for Constitutionality and consensus!

    Then Roberts pulled his penaltax shenanigans to save Obama’s ass.

    It is no wonder that this things has been litigated to hell and back in such twisted ways. Obvious to me that if the GOP Congress had wanted to drop the penaltax, rather than just set it to 0, they could have; if they had wanted to repeal Obamacare, they could have; it is silly to imagine that they intentionally but secretly amended it to be unconstitutional just so the Supreme Court could declare it unconstitutional for them. But that is right in with its twisted history, and right in with government in general, which does what it wants, and the courts aid and abet it.

  15. Kavanaugh is suggesting a different sort of savings construction


  16. Maybe they will fix the current issues with standing and severability.

    If Congress says that I have to jump off a ledge and the nearest Catholic has to catch me, I ought to have standing to argue that Congress can’t make Catholics catch me, and that Congress never intended to make me jump off a ledge with no one to catch me.

    OTOH, why would a Catholic have standing to argue, one way or another, whether or not the jumping mandate is severable from the unconstitutional catching mandate? He doesn’t have to jump.

    1. And if Congress says, in the same breath, that they won’t punish you if you don’t jump, and won’t punish any Catholics for not catching you, then why is the whole thing not a joke to begin with?

      1. I agree that that part is a joke. An unconstitutional mandate without a penalty doesn’t need to redressed by the courts. If I believe that the mandate is unconstitutional, I can just call it unconstitutional and not follow it.

  17. Justice Kagan asks how it could be Congress made the ACA more unconstitutional by making the relevant provisions less coercive.

    Excellent question.

    1. How can you make a bullet more deadly by removing some of it?

      Kagan’s question has shallow appeal, and that’s it.

      1. What?

        The whole argument, the first time around (re: the mandate) was that it was unconstitutional because of the penalty. Remember the whole action/inaction thing? That you could be penalized for NOT having insurance. For just being? For not doing anything?

        And that argument was rejected. Whether you agree, or disagree, that’s what happened.

        So no, the new hotness is … that it is unconstitutional because it doesn’t penalize you. In other words, a later Congress, by getting rid of the most objectionable part that caused the constitutional challenge before …. made it unconstitutional … without even realizing it.

      2. What does this have to do with bullets?

        The mandate was constitutional when the penalty was $600 or whatever it was, but reducing it to zero makes it unconstitutional? What if they made it one cent?

        The whole argument is an absurdity. A mandate that carries no penalty, clearly severable, that harms no one, yet here we are with this idiocy having found its way to the Supreme Court. Lawyers bringing this crap ought to be ashamed of themselves, though I suspect they’re actually proud of the mess.

        1. “The mandate was constitutional when the penalty was $600 or whatever it was, but reducing it to zero makes it unconstitutional? What if they made it one cent?”

          The mandate was unconstitutional when the penalty was $600, but you could make it constitutional by calling it a tax. If the penalty goes away, you can’t call it a tax, so it’s unconstitutional. But as I said above, it’s not redressable.

          It’s also not clearly severable, there’s language in the bill that says that it’s necessary for the rest of the bill. But the thing that make it an issue is the court’s messed up standing doctrine.

          1. Since there is no penalty, it doesn’t require the saving construction of being called a tax. Why does it matter that you can no longer call it a tax? The thing that Roberts called a tax no longer exists.

      3. A telling argument. Previous caselaw has held it ain’t a bullet, it’s a pillow.

        If you want to go back and overrule that caselaw, admit it. To mix metaphors, this kind of end-run is just dirty pool.

  18. Thanks for the very clear and unbiased exposition of the oral argument. Well done.

  19. I thought Kavanaugh’s flag hypo was a bit puzzling, given the generally-ignored commands (or perhaps hortatory suasions) of the Flag Act.

    Mr. D.

Please to post comments