Tuesday, March 27, 2012

Another big day tomorrow

It will not be easy for the Solicitor General to take to the podium again tomorrow.

Not because he did not do a great job today. Despite some opinions I've seen expressed (by Jeffrey Toobin and the like), I thought general Verrilli was about as effective as he could have been under the circumstances.

Rather, tomorrow will be hard just because today had to have been pretty deflating. The Court was obviously quite hostile to the minimum coverage provision--more hostile than most reasonable people could have expected. In particular, the Chief Justice seems nearly a sure vote to strike it down, and Kennedy, though more equivocal, clearly suggested he was leaning in that direction as well. The votes of Scalia and Alito (not to mention Thomas) are abundantly clear.

But General Verrilli (and Deputy SG Ed Kneedler) need to re-group and bring their A games again Wednesday. This is not just because the Medicaid question is terrifically important in its own right (though it surely is that). It is also because the severability question (and the Medicaid question too, to some extent) could give the Government another opportunity to make its case for the mandate. The window might be small, but it surely will present itself at some point. It is difficult to have such a lengthy conversation about the severability of a provision without ever glancing at whether (and why) that provision might (or might not be) unconstitutional in the first place.

So tomorrow could be important in several ways. It could tell us more about the justices' views. And it could give the Government a chance or two to reach Justice Kennedy. So setting aside the merits of the last two questions presented, there is plenty to play for.

On the merits, I still have a hard time seeing this Court invalidating the ACA's Medicaid expansion provisions. All of the slippery-slope lack-of-a-limiting-principle problems that bedeviled the Government today are going to plague the states and Mr. Clement tomorrow. No doubt, the states' argument has some rhetorical force: it does seem that the states have no practical choice. But once one starts peeling the skin of that onion, much of the modern, post-New Deal state starts to unravel. Indeed, if the ACA's Medicaid expansion provisions are unconstitutional, it is hard to see how the entire Medicaid program (and several other major federal programs) has not been unconstitutional for many, many years.

But I was a bit surprised today by the level of the Court's hostility to the minimum coverage provision. Which means I could well be just as surprised tomorrow -- or in June.