Home / General / The Court and the ACA

The Court and the ACA


As Paul mentioned, as expected the Supreme Court will be hearing the case. Perhaps the most interesting thing is that the Court will be having a longer-than-usual argument about the severability issue alone. I think this should make clear that there is a very real chance that the Supreme Court will strike down at least part of the bill, and also that the possibility of striking down the whole bill is in play.

The stakes of this issue are huge — I believe you would have to go back to the New Deal to find a central part of the domestic agenda of a new President struck down so quickly. More thoughts on this tomorrow.

...typically valuable summary by Liptak.

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  • Glenn

    your link is to a typically valuable summary by Lemieux.

    • Scott Lemieux

      Link corrected to comply with truth in advertising laws and the Eighth Amendment.

  • seeker6079

    It’s a shame that Obama isn’t a daring or ruthless man. If SCOTUS strikes down the plan then a more dynamic President would move to FDR’s “what’s so magic about 9?” position, which is enormously appealing.

    • djw

      Of course, in the context of the modern Senate, calling that bluff would be remarkably easy.

      • Scott Lemieux

        I dunno — the Republican House would probably be happy to add 8 slots, and then Republicans in the Senate can just filibuster until there’s a Republican president.

        Seriously, this is up there with “Ben Nelson would have voted for single-payer if Obama had just promised to campaign extra hard!”

        • Hogan

          Never mind that it pretty much blew up in FDR’s face the first time it was tried. But it blew up boldly!

          • TT

            I guess you could say that FDR “lost well”, so that by the latter Truman Administration the Congress was champing at the bit to vastly increase the size of the Supreme Court. Oh wait….

          • Murc

            Wait, it did?

            My historical impression had always been that the court-packing scheme, as a political gambit, WORKED. FDR and his allies (you know, the people who were campaigning on ‘I will vote to expand the SC if elected’) had no especial interest in the size of the court, only that it would stop fucking with the New Deal. The SC backed down. It stopped striking down New Deal legislation. That would seem to indicate that it worked.

            (This is in no way an endorsement of Obama trying the same thing in a radically different political environment with far fewer allies in Congress and a massive public shift in what is and isn’t politically appropriate. It also in no way implies that Obama would want to try it; I doubt he believe such a maneuver would be a legitimate exercise of political force.)

            • They had already decided to uphold the Wagner Act before FDR won re-election. Decision was just announced later.

        • Bart

          Just like Bush v Gore was declared by the Court to be a “one-off”, expansion of the Court by two members could be declared to be temporary with a sunset date and by-pass of Senate approval.

  • Does it really tell us there’s a real chance of striking at least part of it down? Or that 4 justices think there’s a real chance of striking at least part of it down?

    • rea

      No. It tells us there’s a conflict among circuits, which we knew already.

      • efgoldman

        But they announced they were considering only the 11th, which was the only one of the three striking it down, and on fairly narrow grounds.
        I think the four think they can sink it; we’ll see if Kennedy has any balls left.

  • Anderson

    I don’t read anything bad for the law into the time allotted — these are complex issues, and they sure couldn’t be squeezed into a single hour.

    I also think the Court wants to be seen as taking the case Very, Very Seriously, by both sides of the political spectrum.

    • Scott Lemieux

      It’s not so much the total time as the 90 minutes on severability that makes me nervous.

      • John F

        why? striking down the mandate while leaving the rest intact would terrorize the insurance industry into supporting the public option- kind of an assigned risk pool…

        • timb

          striking down the mandate and not severing the rest brings us single payer in no time

        • Murc

          I think Scott is saying that devoting an unusual amount of time to severability is worrying because that makes it more likely the Court will decide the ACA is inseverable and nuke the whole thing. I’d be inclined to agree; I know that when I suddenly switch to thinking long and hard about something I’d usually dismiss out of hand, I’m more likely to do that thing.

      • Anderson

        If it isn’t severable, then isn’t it Necessary & Proper? ;)

        … I think we just have to imagine one or two justices interested in severance. Which we can easily do.

    • howard

      judge silberman has already shown us how an honest conservative who cared about precedent should rule on this, and it should hardly take 5 hours.

      but of course we don’t have any conservatives on the court: we’ve got four hard-core rightwingers and one idiot (kennedy), which should be enough for anyone to worry.

    • David Nieporent

      I don’t read anything bad for the law into the time allotted — these are complex issues, and they sure couldn’t be squeezed into a single hour.

      Before it got this far, people were saying that these weren’t complex issues, that legal challenges to the mandate were frivolous and that it was a slam dunk.

      Very complex issues routinely get squeezed into a single hour by the court; after all, most of the grappling with these issues is done in the briefs, not oral argument. But even if an hour is too short, 5 1/2 is huge. McCain-Feingold, which resulted in about 149 different opinions, was only 4 hours.

  • cpinva

    anyone know how many of those 26 state AG’s are republicans? i ask because:

    1. i’m too damn lazy to go look.,


    2. of all those receiving media attention, all were/are republicans.

    if all 26 are republicans, it becomes pretty obviously a strictly partisan fight, having less to do with actual constitutional issues, and more with politics. this could easily blow up in the GOP’s face, should the court rule in favor of the administration. especially considering how many tax dollars have been spent on it.

    • Hogan

      Furthermore, how many of those 26 were running or about to run for governor?

    • Linnaeus

      I looked it up over lunch. Of the 26 state AGs in the suit, all but 4 are Republicans. The Democrats and their states are:

      Jim Hood (Mississippi)
      Catherine Cortez Masto (Nevada)
      Thomas John Miller (Iowa)
      Greg Phillips (Wyoming)

      • Anderson

        That is interesting, Linnaeus, since the Democratic AG Hood just won re-election over a GOP challenger who campaigned pretty much entirely on the platform that Hood was not joining the fight against Obamacare.

        I think maybe Gov. Barbour was behind that, if MS is on the list.

        • Anderson

          … Of no interest to anyone, but yes, Barbour somehow managed this (I thought only the AG could do so).

          Mike Wallace, whom Dubya tried to appoint to the 5th Circuit, is representing the state free of charge. So take that, all you who thought he was a totally partisan Republican who couldn’t be impartial!

          • Linnaeus

            Thanks for the clarification. I assumed – mistakenly – that ultimately the AGs were responsible. I didn’t know governors would or could go around them.

            • cpinva

              as did i. i had just assumed it was the AG’s who had standing to bring the case, not the gov’s.

  • “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law,” said Randy E. Barnett, a law professor at Georgetown.

    Would it be constitutional if, in place of the word “mandate” the word “option” was used, and in the case that those who made enough money to afford health insurance without cutting down on the amount of food they have to eat to make the expense, then hospitals and doctors can bill them for all the costs of their care and a penalty so they can help pay the bills of people like themselves (like all of us do when we pay a hospital bill), and take their house, if necessary, because they chose that? Since that choice was so important to them.

    • Murc

      Randy thinks that basically all post-Lochner, post-Wickard commerce clause jurisprudence is wrong, so…

      Unconstitutional is a matter of opinion and interpretation in this matter. Unworkable and unpopular are both wrong as facts.

  • patrick II

    If there are going to be 5 1/2 hours of debate, who is going to wake Thomas at the 5:25 mark?

  • wengler

    The overturning of a relatively weak tea package of reforms could have any number of unintended consequences.

    It’s not like people are going to bootstrap their way out of sickness. The odds of both systemic crash and single payer national insurance both went up.

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