More on Kennedy

Here is Goldstein's summary of where Kennedy stands:

Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  

"The individual mandate is in trouble--significant trouble"

So says Tom Goldstein of SCOTUSblog, after listening to the first 90 minutes. His audio update is here.

"Creating commerce"

Kennedy apparently asked the SG several times, in several ways, whether Congress can "create commerce" in order to regulate it. Of course, this is not the frame through which the Government hopes the Court to see the issue. To the Government, virtually every American is already in the commercial health care services market, and the minimum coverage provision is merely regulating the means of financing that preexisting commercial activity.

Frankly, from the reports coming in so far, it is not sounding good for the health of the ACA.

UPDATE: More from Amy Howe of SCOTUSblog:

Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle. They wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise.

The Chief

No details yet, but Roberts was also apparently quite skeptical of Congress's authority to impose the mandate in his questioning of the SG. Again, there are reasons for the Chief to ask tough questions of both sides. So we should have a better sense of where he stands after Clement and Carvin have sat down. Needless to say, if he (along with Kennedy) appears hostile to the Government, it may well be time to start thinking about severability.

UPDATE: Here is a significant quote, courtesy of USA Today:

The court’s conservatives peppered Verilli with questions about whether Congress could also force Americans to buy broccoli, burial insurance, or cellular phones as part of commercial regulations down the road. Verilli said lawmakers couldn’t do that, but the justices seemed unconvinced. “Once you’re into interstate commerce and can regulate it, pretty much all bets are off,” Chief Justice John Roberts said.

Scalia

Those thinking Justice Scalia might follow the logic of his concurrence in Raich (at least one reading of that concurrence) and vote to uphold the minimum coverage provision should probably be disabused of such thoughts. Two important quotes:

 “The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in today’s two-hour argument, Bloomberg News reports. “It’s supposed to be a government of limited powers.” 

Justice Scalia raised the challengers’ point, asking if the government can compel Americans to buy broccoli. “You’re not regulating health care. You’re regulating insurance,” he said.

Kennedy leaning against the mandate?

A potentially telling comment from Justice Kennedy, courtesy of Bloomberg's live blog:

Justice Anthony Kennedy said the requirement to buy health coverage is telling an individual “that [she] must act.” He said, “That changes the relationship of the government to the individual in a fundamental way.”

If Kennedy buys into the challengers' action-inaction distinction--as this comment suggests--the Government is in serious risk of losing his vote.

UPDATE: Another Kennedy quote, also from Bloomberg:

Justice Kennedy said that “I understand we must presume laws are constitutional,” but that the government has a heavy burden here.

Trouble for the Government?

The SG has sat down, and Tom Goldstein of SCOTUSblog offers this quick summary from outside the Court:

We are halfway through the mandate argument; the SG is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through.

The line outside the Court

Courtesy of Max Mallory at SCOTUSblog.

Some things to watch for

Again, this analysis is hardly original. But who can really be original at this point? What has not been said, many times over? Still, I fight on, into the teeth of utter redundancy:

1. Where is the Government's limiting principle? In many respects, the doctrinal argument for the minimum coverage provision is simple and virtually unassailable under existing precedent: (1) the ACA comprehensively regulates the health care services and individual insurance markets, a scheme that plainly regulates interstate commerce; (2) preventing adverse selection in the individual insurance market it critical to making this broader regulatory scheme effective; (3) the individual mandate is a rational (if imperfect) way of solving this adverse selection problem; and thus (4) the mandate is a necessary and proper means to making Congress's regulation of interstate commerce effective. The problem, though, is this: Where does this logic end? If Lopez and Morrison stand for anything, it is that there is some judicially enforceable limit on Congress's enumerated powers. If Congress can mandate the acquisition of health insurance, what products can it not mandate be purchased in pursuit of regulating the relevant market? Thus far, the Government has failed to offer a fully satisfactory answer. This is not necessarily fatal, but it's the weakest link in the mandate's constitutionality. What is Mr. Verrilli's answer tomorrow? Can he avoid the fate of his predecessor, Drew Days, who was unable to satisfy the justices in his answer to the same basic question in Lopez?

2. Why is this not just a question of means? For the other side, the weakest link is probably this. Everyone concedes that Congress could require every American to purchase health care services with insurance--that is, it could prohibit all other forms of financing health care, and thus make it illegal to pay for care with cash, etc. If that is so, how can it be unconstitutional for Congress simply to require that the coverage be obtained in advance of when the care is needed, rather than at the point of purchase? Congress's choice in the ACA seems much more rational, not to mention more humane. Moreover, shouldn't the Court defer to Congress's choice of precise means, given that this other form of insurance mandate is plainly constitutional? Hasn't McCulloch held for nearly 200 years that the Court must defer to Congress on questions of this sort? It will be quite interesting to see how hard the justices pound Mrrs. Clement and Carvin along these lines.

3. Whither Justice Kennedy? Kennedy is not just the Court's present swing vote. Political scientists refer to him as a "super median," the decider of majorities in almost every Roberts Court 5-4 decision--and especially those decisions with an ideological tint. What do his questions tomorrow suggest? Do we see the Kennedy of Bond v. United States, waxing rhapsodically about the significance of federalism to the preservation of individual liberty, and of Comstock, demanding something more rigorous than traditional rational basis review in determining the scope of Congress's authority under the Necessary and Proper Clause? Or do we see the Kennedy of Raich v. Gonzales, silently joining a lattitudinous majority opinion (written by Justice Stevens) that embraced an expansive vision of congressional power?

4. What does the Chief signal? This is the signal case of the Roberts Court, at least to date. And it conjures all of the values that Roberts has discussed as important to the Court, and the Chief's responsibility to steward the institution's national standing and prestige. It is unclear how committed Roberts is to federalism (as his joining Breyer's majority opinion in Comstock suggests)--in contrast, say, to the separation of powers and Article II. Moreover, Roberts might sense that the Court has a whole slew of other controversial decisions heading its way--from immigration, to affirmative action, to Section 5 of the Voting Rights Act, to the Citizens United sequel, to DOMA, to Prop 8 (to name a few). Roberts is apt to avoid signaling too much in his questioning; he knows the world will be watching (or at least listening). But is there anything that seems to suggest his underlying concerns about each side's arguments? Anything we can discern about his lean? Anything that suggests a predilection towards "judicial modesty," or instead a felt need to stand up for basic structural principles?

5. Does the taxing power question get any traction? This seems unlikely, but this just might be a convenient way for a reticent conservative to uphold the mandate. It is unclear that using the taxing power will often be practically (or politically) useful for Congress as a means of regulating conduct more generally. And if that is true, then upholding the minimum coverage provision under this power might have a lot fewer "troubling implications" for the scope of congressional authority. (I can already hear Randy Barnett saying that the implications would be far more troubling; but I'm not sure that is true, especially if Congress is generally reticent to impose taxes.) Again, this does not seem likely. But it is certainly possible.

I could go on. How engaged are the justices in the action-inaction distinction? To what degree do they care whether the regulated person has voluntarily subjected himself to Congress's regulatory authority? How much time do they spend on which market the minimum coverage provision regulates--the health insurance market or the health care services market? To what degree do they focus on the integral-to-a-broader-regulatory-scheme argument, as opposed to the economic-activity-in-its-own-right argument? We could go one all night. In the end, though, the limiting-principle and selection-of-means questions are likely to matter most.

Regardless, it should be a lot of fun.

Tomorrow is the big day

I think I have said from the beginning that the Medicaid question has potentially bigger long-term implications for the federal-state balance in our constitutional system. For if the ACA's expansion of Medicaid constitutes an impermissible "commandeering" of the states, it is unclear where the line of "practical coercion" stops. Much of federal spending legislation--indeed, a majority of the dollars provided to the states by the federal government--could well be unconstitutional.

Which is why, at the end of the day, I do not think the Court will have the stomach for going down that road, no matter how impractical it might be for the states to turn down those billions of Medicaid dollars. The spending power is ultimately limited by the federal government's practical ability to fund the applicable programs, and that may be enough for the Court.

If I am right about this, then tomorrow is really the main event. The Court will hear two hours of argument--one hour from the Solicitor General, 30 minutes from Paul Clement, and 30 minutes from Michael Carvin. And the basic question the Court will be exploring--the breadth of the National Government's legislative powers, and the domain reserved exclusively to the states--is as old as the Republic. We have really never stopped debating the issue since that gathering in Philadelphia in the summer of 1787. We probably never will.

There are a number of important things to watch for. (A subject for a post later tonight, time permitting.) But those matters have been explored thousands of times over the past two years. At this point, my reaction is less intellectual than emotional: we are finally here, the day the mandate goes before the Court. Should be fun.

A view inside the Court

Sort of.

A quick analysis of today's argument

Nothing is certain merely from listening to oral argument at the Court. But it sure seemed as if a large majority of the justices (and perhaps all of them) thought the Court has jurisdiction in this case and can proceed to address the merits of whether the minimum essential coverage provision is within Congress's enumerated powers. There were several different theories, and there seemed to be some sharp disagreement as to whether the AIA is jurisdictional in nature. But it also seemed that a majority of justices could agree on a narrower proposition, something along these lines: (1) statutes stripping the courts of jurisdiction are generally construed narrowly, meaning that Congress must make its intent clear; (2) the ACA--especially in specifically demarcating the exaction in 5000A(b) a "penalty"--did not make Congress's intent for the AIA to apply clear; thus (3) even if the AIA is jurisdictional, it does not apply to the penalty imposed in 5000A(b). (Perhaps some justices might concur only in the judgment, finding that the Government can waive the AIA in certain circumstances, as it did in Davis.)

No doubt, the meaning of the AIA (and whether it is jurisdictional in nature) are somewhat important in their own rights. But in the broader scheme, what matters from today is that the Court is almost certain to get to the minimum coverage provision's constitutional merits. That is the question for tomorrow--the biggest single day at the Court since December 2000.

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.

Audio now available

Here.

Skepticism from the Chief about 5000A(a) as a stand-alone mandate

A long-running dispute between the parties has concerned whether 26 USC 5000A(a), which requires "applicable individuals" to acquire minimally adequate coverage, operates as a stand-alone mandate, independent of the tax penalty imposed for failing to acquire such coverage, which is codified in 26 USC 5000A(b).

According to a report on the Wall Street Journal's blog, the Chief Justice appeared highly skeptical of the challengers' characterization of 5000A(a) as a stand-alone legal requirement. Here is the quote from the blog: 

Rounding out the arguments inside the courtroom, Gregory Katsas of the law firm Jones Day spoke for the challengers to the law. He argued that it was irrelevant whether the penalty qualified as a tax, because the challengers' lawsuit targeted the requirement to carry insurance, not the penalty for failing to do so.

Chief Justice John Roberts said that distinction seemed senseless, because the penalty was the only consequence for disregarding the mandate. Otherwise, the law would be “completely toothless,” he said. “Buy insurance or else,” he said. “Or else—nothing.”

AIA going nowhere?

Very early reports (such as those from Kevin Russell and Tom Goldstein over at SCOTUSblog) indicate that there was not much enthusiasm among the justices for finding that the AIA deprives the Court of jurisdiction.

The argument apparently has just ended. The audio should be up relatively soon.

UPDATE: Lyle Denniston appears to agree that the Court is headed toward reaching the merits. You can find his first report here. Denniston writes: "The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass was clear."

And it is on

Sounds as if the Court is planning to hand down one or more opinions this morning, so the argument will not actually begin until a few minutes after 10:00. But regardless, we are only minutes away. For those of you in attendance, enjoy. For the rest of us, the audio should be available some time shortly after 1:00 EDT (10:00 out here on the west coast)--or at least that is what C-SPAN anticipates.

Some things to look for tomorrow

It is always hazardous to draw strong inferences from what happens at oral argument, particularly in a case of this nature. The justices know full well that the world will be watching, and thus will be conscious of how their questions might be perceived. (Look for the Chief to ask very tough questions of both sides.) Still, with that as a caveat, here are a few things to look for in tomorrow's proceedings on the Court's jurisdiction:

1. Does the Chief Justice or Justice Kennedy reveal some significant sympathy to Mr. Long's argument that the AIA deprives the Court of jurisdiction? Most have identified (I think rightly) these two justices as the critical votes. And they both--perhaps for different reasons--may wish the Court could simply avoid this matter altogether. Thus, any indications of their views on the matter are important, perhaps even dispositive.

2. Does Justice Scalia seem intrigued by the jurisdictional question? He is known as a hawk on Article III jurisdictional matters, a stickler for the limited role of federal courts. And he has voted that the Court lacks jurisdiction even in cases where the result has confounded his apparent ideological leanings. (Recall the case involving Utah's claim to an additional congressional seat.) Point 1 above notwithstanding, it is conceivable that Scalia, combined with the four Democratic appointees, could find the AIA argument persuasive.

3. Do the Justices' invoke the opinion of Judge Kavanaugh in Seven-Sky? There may be no more influential lower-court judge with the Court's present conservatives than D.C. Circuit Judge Brett Kavanaugh. And in a lengthy, scholarly opinion in Seven-Sky, Kavanaugh concluded (in dissent) that the AIA barred pre-enforcement challenges (at least by private individuals) to the minimum coverage provisions. If the justices are asking several questions referencing Kavanaugh's opinion, it could signal that the AIA argument has gained substantial traction.

4. To what extent do the justices ask about the states' Article III standing to challenge the mandate? This would only become an issue if the Court concludes that the AIA bars jurisdiction over the private parties' challenge to the mandate. So if this is a significant topic of discussion, it could mean a critical mass of justices think the Court needs to reach and resolve it.

5. Do the justices express any concern about what happens between now and 2015? If the Court dismisses the challenge to the minimum coverage provision on jurisdictional grounds, it likely means there could be no challenge in federal court until 2015, once the IRS has assessed a deficiency for someone failing to pay the applicable tax penalty. (Congress could amend the AIA in the interim, though, moving up the date.) Such a delay would leave a number of actors (large employers, health insurers, state and local governments, etc.) in a state of significant uncertainty, having to implement the ACA's requirements without knowing whether they will ultimately be upheld. Will the obvious costs of such uncertainty hanging over an industry comprising 18% of the U.S. economy dissuade the Court from going this route? If these practical implications are a significant object of inquiry, it points towards the Court going ahead and reaching the merits.

There are many more we could probably add to the list. But these are the five that jump out at me right now.

Here we go

And we are now within 23 hours of tip off, when Mr. Robert Long will step to the dais and a remarkable (though not entirely "unprecedented") three days of oral argument begins.

There are hundreds of previews running in newspapers across the globe today. Howard Bashman of How Appealing has a nice gathering of many of the more significant ones here (from today's papers) and here (from yesterday's). Lyle Denniston of SCOTUSblog has a terrific essay capturing the potential historical significance of the case here.

Again, the Court will release audio files and written transcripts shortly after the arguments end each day. those will be available on the Court's web site. In addition, C-SPAN will be broadcasting those tapes (with the standard accompaniment of still photos) both on television and through its web site. You can access its page dedicated to the ACA arguments here. Pre-argument coverage begins at 7:00 am EDT tomorrow morning.

At long last, this is what we have all been waiting for, since March 23, 2010 (if not sooner). I will try to check in here regularly as the arguments unfold, to the extent my day job permits.

Same day audio

The Supreme Court released this memorandum today:

FOR IMMEDIATE RELEASE  March 16,2012 

For Further Information Contact: Kathy Arberg (202) 479-3211 

 The Court will hear argument in the Patient Protection and Affordable Care Act cases on March 26, 27, and 28. Because of the extraordinary public interest in those cases, the Court will provide the audio recordings and transcripts of the oral arguments on an expedited basis through the Court's Website. 

 The Court will post the audio recordings and unofficial transcripts as soon as the digital files are available for uploading to the Website. The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m. 

Anyone interested in the proceedings will be able to access the recordings and transcripts directly through links on the homepage of the Court's Website. The homepage currently provides links to the orders, briefs, and other information about the cases.