Monday, March 26, 2012

Open thread on the argument

11:24: The Chief thanks the Court-appointed amicus, and we are done.

11:23: Long argues again that there has been a long line of cases since Davis saying the AIA is jurisdictional, which Congress has ratified.

11:22: Breyer, seeming to sum up much of what the justices were thinking all morning, says it sure seems that Congress did not intend this provision to be subject to the AIA.

11:21: Long finishing by arguing again that "assessment" and "collection" are not aimed only at the operation of Secretary. These provisions also speak to the adjudicatory process.

11:19: Katsas says principal argument for state standing is that they are harmed by mandate forcing more to enroll in Medicaid, even though the states are not direct object of the tax penalty.

11:17: Katsas wrapping up by stating that, even if the Court disagrees with everything he has said to this point, the states fit within the AIA exception recognized in South Carolina v. Regan. And states have standing because of the injury due to the mandate causing more individuals to enroll in Medicaid beginning in 2014.

11:12: Katsas says yes, but here that is beside the point -- there are lots of injuries here.

11:12: Kagan asks whether someone not subject to the 5000A(b) penalty would have standing.

11:08: Says the Chief: "The whole point of the suit is to prevent the collection of penalties. . . . The idea that the mandate is something separate . . . just doesn't seem to make much sense. . . . It seems very artificial to separate the penalty from the crime. . . . Why would you have a requirement that is entirely toothless? "

11:05: Sotomayor asks whether the AIA is jurisdictional except when the SG waives it, then acknowledges that the idea is "nonsensical."

11:04: Katsas, picking up on the Chief's apparent leanings, argues Helvering v. Davis is the refutation that the AIA is not jurisdictional, that the Government can waive it in certain circumstances.

11:01: Again, the argument here seems beside the real point, which is whether the AIA applies to this case. Instead, the justices are focusing on the question whether the AIA is jurisdictional. In other words, the fight at this point seems to be about the rationale, not the (jurisdictional) result.

10:55: Here comes Mr. Katsas.

10:53: SG says essence of argument is that there is no textual indication in the ACA that Congress intended the tax penalty in 5000A to be treated as a "tax" for purposes of the AIA.

10:51: Alito certainly seems to believe that 5000A(a) is a stand-alone legal requirement.

10:50: Kagan asks whether someone who has paid the penalty has violated the law? The SG, taking the softball, says no. Only if she fails to pay the tax -- I mean "tax penalty."

10:46: SG points to another provision of the ACA which refers to exemption from "the requirement" as including those who are exempt from the penalty.

10:44: SG points out that it would make no sense to think of individuals obtaining their health care through the Indian Health Services as "violating the law." It is not a sound reading of 5000A as a whole.

10:42: SG says that exceptions to the mandate and exceptions to the penalty both constitute "exceptions to the requirement."

10:41: Sotomayor opens the question of whether the penalty is the sole consequence of not complying with the minimum coverage provision. SG responds that there is no consequence other than the tax penalty.

10:39: It is telling that the SG is getting hit not on his position that the AIA is not a bar here, but on the Government's position that the AIA is jurisdictional.

10:32: SG says that Davis is "fundamentally inconsistent" with what has come since.

10:31: The Chief returns to Davis. He seems quite focused on that as the most salient precedent, where the Government waived the AIA.

10:30: The SG reiterates the Government's concern in holding the AIA not to be jurisdictional. First, it opens the door to courts creating equitable exceptions. Second, low-level government attorneys might mistakenly waive it.

10:24: SG makes clear that the Court need not reach the question whether the AIA is jurisdictional.

10:23: Alito gets the SG into the taxing power question. Has the Court ever held that the same exaction was a tax for the taxing power but not for purposes of the AIA? No, says the SG, but the inquiries are fundamentally different, pointing to the Licensing Cases.

10:20: The SG steps to the dais.

10:13: Kennedy offers yet another theory: having the statute's application turn on the "purpose" of the suit is highly unusual for a jurisdictional bar.

10:10: Six ways to Sunday--there appear to be about six different theories as to why the AIA does not prevent the Court from getting to the merits. Everything seems to be pointing toward the same result.

10:07: Scalia brings up the canon of interpretation that "ousters of jurisdiction are to be construed narrowly," and that it if anything is clear here, whether the AIA applies to the penalty imposed by the minimum coverage provision "is not clear."

10:00: Sotomayor asks, "Isn't the fairer statement that, in extraordinary circumstances, we will hear the case?" She and Kagan seem to be agreeing with the Chief and Alito, that the AIA is not jurisdictional--that it can be at least be waived by the government in "extraordinary circumstances"

9:56: The Court "has kind of gone back and forth" on whether the AIA is jurisdictional, says the Chief, which means that any congressional authorization of the Court's interpretation ambiguous (or unenlightening).

9:55: Alito seems to be joining the Chief on this point. "Would any case have come out differently?" In other words, though the Court has said that the AIA was jurisdictional, it has never mattered.

9:53: The Chief seems to see the AIA as non-jurisdictional, that Helvering v. Davis controls (where the government waived an AIA defense). "Has Helvering v. Davis been overruled?," he asks. That would be a relatively clean manner to get to the merits, though it seems to have some trouble in explaining a number of intervening decisions from the Court.