Thursday, November 15, 2012

I've Moved!

The new address is

Hope you'll join me!

(Many thanks to Laura Haymond for the website design, she did a magnificent job.)

Thursday, June 28, 2012

The individual mandate is upheld as a tax. 5-4 Chief Justice John Roberts wrote the opinion.


There's no way to know for sure how the Supreme Court will rule this morning on the individual mandate and its connection to the rest of the Affordable Care Act. For what it's worth, I think the Supreme Court is going to uphold the mandate.  Chief Justice John Roberts and Justice Kennedy (considered the swing vote of the Court and likely the most crucial vote to any majority opinion) both asked the Solicitor General tough questions during the case's oral argument in March. Although many commentators afterword and in the three months proceeding predicted doomsday for the Obama administration (you might recall Jeffrey Toobin's "this has been a trainwreck for Obama" comment), I doubt that the Court will ultimately rule in this fashion.

I think that Chief Justice Roberts will write an opinion, 6-3 with Justice Kennedy writing a concurrence mostly concerning the limiting principle.  This will be a very narrow decision, but at the end of the day, I believe the individual mandate and the Affordable Care Act will ultimely survive.

Now we have an hour to find out if I'll eat my words.

Friday, March 30, 2012

Now that I've taken some time to recover, I want to thank all of my readers (old and new) for following along during my five-day campout at the Supreme Court.

In the past week this blog has received a fair amount of attention, particularly on account of the Supreme Court health care hearings. I truly appreciate the links that were posted, the time that was spent by people reading this blog, and everyone's support and encouragement. I hope you continue reading in the future as I continue to cover the Supreme Court.  It's going to be a suspenseful three months until the Court makes its decision in June.

Wednesday, March 28, 2012

The main theme of today's oral arguments, considering whether or not the rest of the Affordable Care Act can stand if the Court finds that the individual mandate is unconstitutional, boiled down to what constitutes judicial restraint in this context. What is the most limited yet effective solution the Court can adopt?

Advocates today offered three potential outcomes for the Court to consider if the individual mandate fell: (1) Striking down the entire law to allow Congress to work from scratch, (2) Expunging the community rating and guaranteed coverage requirements (those obligating insurance companies to cover everyone regardless of preexisting conditions), but allowing the seemingly-unrelated aspects of the law to continue, or (3) Removing only the individual mandate so that Congress can determine and fix any problems that arise from the remaining provisions.

Normally judicial restraint is shown by the Court deferring as much as possible to elected officials (i.e. not striking down laws), which would imply that the opposite (occasionally referred to as judicial activism) is for the Court to declare more laws unconstitutional. Today the Justices wondered if stepping into the muddled territory of which provisions would effect each other and which ones could stand alone (and as Congress intended them to stand) would be an unwelcome intrusion, even if it meant more of the law would survive.

Justice Sotomayor argued that leveling any provisions beyond just those that the Court deemed unconstitutional would be an undemocratic, intrusive step outside the Court's traditional role.

Justice Sotomayor: What's wrong with leaving it to -- in the hands of the people who should be fixing this, not us?...Are you suggesting that we should take on more power to the Court?...Unless Congress tells us directly, it's not severable, we shouldn't sever. We should let them fix their problems.
Justice Scalia, on the other hand, indicated he supported a complete upending of the law to avoid any unnecessary complications that might occur by salvaging bits and pieces.

Justice Scalia: So you're just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process? It seems to me it's a gross distortion of it.
 Justice Kennedy, who is presumed by many to have the final say in the outcome of this case, appeared to side with Justice Scalia.

Justice Kennedy: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole. I just don't accept the premise.
But the lawyers came well prepared for these responses.

Paul Clement argued for the petitioner that each of the provisions relied on one another so that if the individual mandate fell, the Court's investigation would find that the periphery clauses would have to as well. The mandate is connected to the exchanges, which is connected to the tax credits, which is connected to the employer mandates and revenue offsets, and so on and so forth like dominoes.

H. Bartow Farr, appointed by the Court to argue that the rest of the law could stand without the mandate, argued that the mandate was just one of many tools that Congress relied on to fund the monetary fallout insurance companies would absorb. If the Court found the mandate unconstitutional, Congress would simply fill in the gap with a different mechanism.

By the end of the argument it appeared that, as expected, the liberal justices wanted as much of the act as possible to remain, while the more conservative justices were content with wiping the slate clean. Only Justice Roberts appeared willing to allow some of the periphery provisions to remain.

Tuesday, March 27, 2012

A few initial observations from oral arguments today:

(1) There were many missed opportunities for Solictor General Verrili to alleviate the Justices' concerns that the individual mandate lacked a limiting principle.

One in particular came in the first 15 minutes, when Chief Justice Roberts asked Verrili how requiring health care is any different from requiring everyone to buy a cell phone to mitigate future disasters. After all, the point to health care is that you never know when you'll get sick, just as you don't know when you'll need to call an ambulance.
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- We -- I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they -
CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it.
This question appeared to be Justice Roberts offering Verrilli an early opportunity to provide a limiting principle - an opportunity Verrilli failed to take. At the very least, he should have stated that the Court could reserve the right to strike down a mandate that affected a different market, since healthcare is unique. (Unique in that insurance provides the only affordable means of receiving healthcare, and thus everyone is involved in the insurance/healthcare market).

(2) Arguments against the mandate relied heavily on creating a distinction between the healthcare insurance market and healthcare services.

Both Paul Clement and Mike Carvin responded to the Justice's comments that the mandate sought to regulate a market that already existed and everyone is a natural part of by drawing a line between buying insurance and receiving healthcare. It is true that most people have to participate in healthcare at some point in their life, but that doesn't mean that they have to buy insurance. Insurance allows a participant to take a risk based on their individual circumstances and reduce the costs for services they expect to receive.  There are plenty of people, usually younger, who decide that the risk is low enough that they don't need insurance and the healthcare law will infringe on this decision.

(3) Justice Kennedy's strange silence is more indicative of his lack of a strong opinion on the mandate's constitutionality than his support for striking it down.

Many commentators are already pointing to the lack of questions asked by Justice Kennedy during the second half of the arguments (when advocates argued against the mandate) to show that he supports ruling the law as unconstitutional.  But Justice Kennedy is usually just as vociferous in his questioning when he supports a law as when he is against it. Questions are often used by the justices to draw out arguments they find more compelling to persuade their judicial companions.

It could be that Justice Kennedy simply saw no point in arguing when it was likely the liberal bloc would vote to uphold the law, or that he didn't want to show his hand to the wide and thirsty audience that has made him the focal point of their predictions. The questions he did ask show his hesitance to grant Congress an expansion in the commerce clause, but whether the unique nature of the healthcare market provided a justification for doing so was largely left unanswered.

Which is why I believe Chief Justice Robert's vote will be crucial to the outcome of the case. Justice Kennedy has a reputation for wavering on his vote throughout the opinion drafting process. My guess is that he will side with Roberts in whatever direction that takes him.

(It is fairly clear that Justices Thomas, Alito, and Scalia will vote to strike it down, as Justices Breyer, Sotomayor, Kagan, and Ginsburg will vote to uphold it.)

Monday, March 26, 2012

After waking up once again to an abrupt 3:00am shower (thank you Supreme Court sprinklers - what would this experience be without you?), I took another head count and our line had grown to 80 participants over night. About half of the people I spoke with expressed interest in Tuesday's oral argument, but many others had been worn out by the cold night and acquiesced to hearing Monday's case.

At 7:30 the police instructed the line that 60 people would be admitted, and no one would be allowed a second viewing. The police walked down the line, handing out small slips of paper that held a viewer's official number in the line to the Courtroom. In half an hour the line separated, leaving approximately 40 people still standing on the sidewalk waiting for Tuesday and 12 who were unable to receive a seat. The latter were happily escorted inside the building when the police returned with more seats for the general public.

He felt a lot differently when the initial cut-off said no one after 60 would get in.

No one who wanted to see the Court's Monday arguments was left out. Even those who had arrived the morning of were able to claim the additional seats allocated to the public. From the point of view of someone who was expecting a line of epic proportions, I was a little disappointed. It's possible that Tuesday will see a significant turn out for the debate over the individual mandate, but as of 9:00 tonight it still looks like everyone in line will be able to get a seat. Not that this is a bad thing, but it gives me a different perspective on sleeping on the sidewalk for four days.

Protests continued throughout the day, including several tea party members and ACA supporters. Rick Santorum appeared briefly for a comment, but other than the emphatic chanting of pro-healthcare slogans, the event was uneventful.

As for the Anti-Injunction Act arguments that were heard today, the general consensus from viewers is that it is extremely unlikely the Court will rule that that the healthcare requirement is a tax, not a penalty, and that case should be postponed until after the law goes into effect.