COVID-19 & Healthcare

Posted by AzBlueMeanie:

The last of the arguments before the U.S. Supreme Court on the Affordable Care Act dealt with the expansion of medicaid coverage, and what the challengers to the law call the "coercion" theory — the federal government withholding federal Medicaid funds to states that refuse to participate in the ACA. At its heart, this is a "states' rights" theory of sovereignty.

Lyle Denniston at SCOTUSblog.com summarizes the arguments. Argument recap: Will Medicaid be sacrificed?:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.  It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act.  If that happens, it probably would be done by a 5-4 vote.

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The Justices were actively engaged in what was the Court’s first full exploration in history of the theory — never put into actual practice — that the conditions that Congress attaches to money it hands out to the states can be so onerous that they deprive the states of their sovereign independence, coercing them into compliance with federal controls.   Chief Justice John G. Roberts, Jr., allowed the argument to run 25 minutes beyond the scheduled hour.  The end result was what appeared to be a very sharp division within the Court, straight along ideological lines, with the skeptics about this “coercion theory” quite conspicuously in the minority.

Posted by AzBlueMeanie:

Wednesday morning's argument was on the issue of "severability." For some unexplained reason, Congress did not include a common "severability" clause in the Affordable Care Act. Opponents of the Act seized upon this and tried to argue in the lower courts that this means "all or nothing": if any one part of the Act is struck down, the whole Act must fail. The Courts of Appeals divided on this issue.

It would appear from this morning's Q&A from the Justices that they are not buying the "all or nothing" approach. Court's have frequently implied severability into statutes. The Court also demonstrated no stomach for going through the ACA line by line to determine what provisions would remain should they strike down other provisions, reasonably suggesting that this is best left to the legislative function of Congress.

Lyle Denniston at SCOTUSblog.com has the severability argument summary. Argument recap: A lift for the mandate?:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself. (emphasis added)

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”  Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.

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Posted by AzBlueMeanie:

Today's argument was the "Superbowl" as Politico called it, the oral arguments on the individual mandate. I would caution anyone from trying to read the tea leaves from oral arguments today. There was skepticism with a dose of Devil's advocate in the questions from the bench. The Justices were testing the lawyers' arguments.

Tom Goldstein at SCOTUSblog.com picked up on the important question from Justice Kennedy towards the end of oral argument. The argument is done:

Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

Lyle Denniston at SCOTUSblog.com agrees. Argument recap: It is Kennedy’s call:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Posted by AzBlueMeanie: Lyle Denniston at SCOTUSblog has a lengthy summary of today's U.S. Supreme Court arguments on the Affordable Care Act, specifically on the issue of whether the Anti-Injunction Act of 1867 is a procedural bar to the Court deciding the case. The Q&A from the Justices on this issue would appear to suggest … Read more