COVID-19 & Healthcare

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.

By Michael Bryan I thought the Republicans in this state had some guts, at least. They know what they believe and watch out if you won't believe it, too. But in introducing the nation's most restrictive abortion law, the best they can do to punish a doctor who – by thier reckoning – has committed … Read more

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

Posted by AzBlueMeanie:

A survey of legal experts finds they believe that the U.S. Supreme Court will follow precedent and uphold the Affordable Care Act.

National Journal surveyed former Supreme Court clerks and lawyers who have argued cases before the high court about the health care law, and the Legal Insiders Expect Supreme Court to Uphold Health Care Law:

The survey asked former Supreme Court clerks and lawyers who have argued cases before the Court to assess the probability, on a scale from zero to 100 percent, that the Justices would strike down the law’s mandates on individuals to purchase health insurance or its provisions expanding eligibility for Medicaid to millions of more uninsured adults.

Overall, those surveyed felt there was only a 35 percent probability that the Court would strike down the law’s individual mandate as unconstitutional. Attorneys who had clerked for one of the Court’s four conservative Justices and those who had clerked for Justice Anthony Kennedy, who is considered the key swing vote on the issue, forecast a somewhat higher probability that the law would be struck down than those who had clerked for the four liberal justices.

But all three groups of former clerks-even those who had worked for the Court’s conservative block-said the odds that the Justices would uphold the mandate was well above 50 percent. Lawyers who have argued before the Court said there was a 36 percent probability the Justices would strike down the mandate, about the same as the clerks overall.

“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one respondent noted in an open-ended comment. “I think the Court will uphold the statute by a lopsided majority.”

The survey was sponsored by two centrist groups: American Action Forum, a center-right Republican advocacy group and the Blue Dog Research Forum, a center-left Democratic advocacy group. It was conducted by Purple Insights, the research division of Purple Strategies, a bipartisan political consulting firm.

To conduct the poll, Purple Insights last week directed e-mails, and follow-up phone calls at a group of former clerks and attorneys who have argued before the court. In the end, 43 former clerks and 23 attorneys responded to the on-line poll. “From a methodology standpoint, this was a very hard to population to reach…some of the most elite attorneys in the country,” said Doug Usher, who conducted the survey for Purple Insights. “We were pleased with their participation rate and we think the results will add to the discussion.”

Given that level of participation, the results are more suggestive than conclusive. But they may reflect a gap between a political community, where the dominant expectation is that the Court’s five Republican-appointed Justices will unify to strike down the law, and a legal community operating on different assumptions.