Update: My apologies, but there were actually two oral argument sections today. You can hear the second part, here. As of this writing there is no transcript, yet, but I am sure that will change shortly. Also see below for some analysis of the first part.
Update (II): The second part of the discussion today is about the expansion of medicaid. This has to do with when the Federal Government can coerce states with financial incentives. I will say bluntly I have not explored that issue as much as the mandate and severability, so I will write a post on the severability arguments first, and then listen to the second argument and see if I have any insight on that. It might be the case that I have none.
And ultimately it might be irrelevant. If the Supreme Court rules that none of the act can be severed, then this whole question becomes moot. But I will confess to a certain amount of skepticism of the argument that somehow cutting off Federal funding is "coercive."
We now resume the original post, more or less as it was written.
This isn’t likely to be as “sexy” as yesterday’s arguments, but here’s the thing: in some ways it is more important. They are talking about severability. The issue is, if the mandate is unconstitutional, does that mean the whole law is struck down, or just part of it? And that is important because if only part of it is struck down, the rest of it could be a potential economic disaster.
Update (II): The second part of the discussion today is about the expansion of medicaid. This has to do with when the Federal Government can coerce states with financial incentives. I will say bluntly I have not explored that issue as much as the mandate and severability, so I will write a post on the severability arguments first, and then listen to the second argument and see if I have any insight on that. It might be the case that I have none.
And ultimately it might be irrelevant. If the Supreme Court rules that none of the act can be severed, then this whole question becomes moot. But I will confess to a certain amount of skepticism of the argument that somehow cutting off Federal funding is "coercive."
We now resume the original post, more or less as it was written.
This isn’t likely to be as “sexy” as yesterday’s arguments, but here’s the thing: in some ways it is more important. They are talking about severability. The issue is, if the mandate is unconstitutional, does that mean the whole law is struck down, or just part of it? And that is important because if only part of it is struck down, the rest of it could be a potential economic disaster.
I wrote about the issue back in my Patterico days, here. The short answer is this. There is no severability provision in the law, which is a pretty big oversight. So with no explicit guidance from Congress, the Supreme Court will default to a test of their own:
So it’s a two part test: does the rest of the law even work without the invalid portion? And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?
At least that is what they will do if they follow precedent. But I really would be surprised if they blaze a new trail on this one.
Update: Having only listened to the first part of the discussion, I can see that the conservatives are toying with the idea of making new law. They are arguing that the mandate is the "heart" of Obamacare, and thus it is inappropriate to be talking about severing the rest when you cut out the heart. It also seems that even the liberals will want to sever out more than the mandate, if the mandate is struck down. More will come.
Update: Having only listened to the first part of the discussion, I can see that the conservatives are toying with the idea of making new law. They are arguing that the mandate is the "heart" of Obamacare, and thus it is inappropriate to be talking about severing the rest when you cut out the heart. It also seems that even the liberals will want to sever out more than the mandate, if the mandate is struck down. More will come.
And since I am a health lawyer, I think I can justify listening right now. You can listen and read the transcript, here. [Update: bad link. Fixed.]
Also to commemorate my analysis of yesterday's argument, let’s remember Nancy Pelosi’s response to the question of whether Obamacare is constitutional:
Yes, Nancy, they are serious. And perhaps if you took your role as a guardian of our sacred constitution more seriously, we wouldn’t be in this position.
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Follow me at Twitter @aaronworthing, mostly for snark and site updates. And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here. And you can read a little more about my novel, here.
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