Day Two Q & A


Thanks for tuning in again.  Please post any questions you have on today’s arguments, or the health care case generally, in the comments below.  Dom will answer them as they come in from 3 to 4 p.m.  (Please refresh your screen periodically by pressing F5, or clicking on your refresh icon, to see new comments and answers.  They will not pop up automatically.)

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9 Responses to Day Two Q & A

  1. Jenn says:

    Why is the news media now saying the court will likely over turn the law when yesterday they said they’d uphold it?

    • domperella says:

      Jenn: the reason is that the conservative Justices — including some of the ones people thought might vote to uphold the law — asked very tough questions of the government’s lawyer. That suggested to some people that all five of them will vote to strike down the law. But I wouldn’t go that far at all. I thought the questions from Justice Kennedy and Chief Justice Roberts were tough to both sides and didn’t reveal where they’ll come out. If either one of them votes in favor of the law, it likely will be upheld.

  2. JoninDC says:

    Dom- at today’s hearing Justice Kennedy said the government has a “very heavy burden of justification” for the law’s requirement that people carry health insurance or pay a penalty. What kind of justification would Justice Kennedy, in particular, require in order to find the law constitutional?

    • domperella says:

      Good question. Justice Kennedy has suggested in past opinions that he wants to see empirical evidence about how a law connects to commerce, or about how the challenged part of a law facilitates the other parts of a broad statute, before he’ll vote to uphold it in cases like this one. That may be what he was driving at. Here he could look to Congress’ findings about the importance of the mandate, or to the wealth of data in the AHA brief and other amicus briefs, to find that sort of data.

  3. Heather says:

    Given how close this ruling could be, is there any chance the Justices could delay beyond June?

    • domperella says:

      Heather — it’s certainly possible, but I’d say unlikely. The Court sometimes does hold a case, or schedule it for a second oral argument and additional briefs, if it has a lot of unanswered questions. It did that just last month in a major international law case. But this doesn’t strike me as the sort of case where that is likely to happen, in part because the issues have been aired out for so long. It’s likely this case will be decided in June.

  4. smarotta says:

    Do the severability arguments tomorrow have greater importance now that many think the Court might strike down the mandate? Will that change anyone’s strategy at oral argument?

    • domperella says:

      I don’t think they’ll change anyone’s strategy too much. From the beginning, the parties had to go into the severability arguments assuming, just for the sake of argument, that the Court would strike down the mandate. Otherwise the severability issue doesn’t come up. So I think the parties’ game plans will be basically unchanged.

  5. domperella says:

    Another reader asked: “Based on today’s arguments re: the individual mandate, can you comment on the severability arguments tomorrow.”

    For those who don’t know, the “severability” issue is about what the Supreme Court should do with the rest of the ACA in the event it strikes down the mandate: Would the rest of the law stay intact? Would certain other provisions also fall, because they don’t make sense without the mandate? Would all of it be struck down?

    The only point relevant to severability in today’s argument, I think, is that the Solicitor General repeatedly tied the mandate to the “guaranteed issue” and “community rating” provisions of the ACA, saying they all work together as a “package.” That suggests that if the Court were to strike down the mandate, it should also strike down the provisions I just mentioned. That’s consistent with the government’s brief; they’ve said that if the mandate falls, those two provisions should fall too but the balance of the ACA should remain intact. (The other parties, unsurprisingly, take different positions on that issue.)

    Thanks Elizabeth. For those who don’t know, the “severability” issue is about what the Supreme Court should do with the rest of the ACA in the event it strikes down the mandate: Would the rest of the law stay intact? Would certain other provisions also fall, because they don’t make sense without the mandate? Would all of it be struck down?

    The only point relevant to severability in today’s argument, I think, is that the Solicitor General repeatedly tied the mandate to the “guaranteed issue” and “community rating” provisions of the ACA, saying they all work together as a “package.” That suggests that if the Court were to strike down the mandate, it should also strike down the provisions I just mentioned. That’s consistent with the government’s brief; they’ve said that if the mandate falls, those two provisions should fall too but the balance of the ACA should remain intact. (The other parties, unsurprisingly, take different positions on that issue.)