Wednesday, June 8, 2011


Paul Clement just sat down. Much more interest, it appears, in invalidating the Medicaid provisions than I would have supposed. Perhaps most tellingly, Judge Marcus asked whether the Medicaid provisions were severable from the rest of the ACA.

Chief Judge Dubina does not appear terribly engaged. Perhaps this is just his style at argument. Or perhaps this suggests that what happens at argument is not all that important to his decision.

And the panel seems totally untroubled by any justiciability issues. Focus is entirely on the merits.

There is real danger in reading too much from argument. But boy, the ACA seems to be in some serious trouble here.