Big comment from Kavanaugh just now: "I tend to agree with you" that the case is "very straightforward" under our severability precedents. Those precedents (including an opinion authored by Kavanaugh last term) say there is usually a strong presumption in favor of severability.
— SCOTUSblog (@SCOTUSblog) November 10, 2020
Under this question, assuming that Texas et al have standing to sue, the limit of the change in the law is ripping out about a page and nothing else. It would be a constitutional and legal nothingburger as standard severability doctrine is that if the Court finds something unconstitutional, it only carves out the smallest chunk of the law needed to bring the law back into compliance with the constitution and make the operation of the law non-banana-pants crazy.
Benw
Bout time someone tried to keep the damn gubment outta my Medicare!
burnspbesq
Roberts is giving the Texas Solicitor General (who is an asshole, BTW) a really hard time on severability. This looks like it might be the way out that can garner five votes (although standing should be the way out).
Frankensteinbeck
Thank goodness. I am so happy to be wrong.
Enhanced Voting Techniques
They would basically be ruling a tax is unconstitutional. Sounds like on target for the Federalist Society to me.
JPL
@burnspbesq: Kavanaugh and Roberts both appear to agree.
Hawkins is awful.
debbie
Are we sure Kavanaugh knows what case he’s talking about?
Omnes Omnibus
Personally, I think that the ACA will survive this challenge simply because there are too many legal route to keep it alive. To toss it out would require an affirmative choice to get rid of it despite the many better legal arguments for keeping it. I don’t think the Court is at that point yet. I know others are going to vehemently disagree and I understand why. I simply come to a different conclusion.
burnspbesq
@JPL:
Of course he is. He was hired by Paxton.
HinTN
@debbie: Does it matter?
Calouste
@debbie: A case of Miller Lite?
Immanentize
I was hoping for a win on standing — no one can demonstrate any injury — they don’t have to buy insurance and there is no penalty if they don’t. Where is the case in controversy? But I heard Verrilli (sp?) this morning who is arguing for the ACA and he seems to have just blown past that.
Immanentize
@Omnes Omnibus: I agree. Also, realistically, the ACA is a decade old and completely interwoven into the fabric of our economy. The Court is already suffering enough legitimacy concerns to almost wreck it. Do they want to tank the economy too?
JPL
Robert’s point that if Congress wants to overturn the law, they can. It’s not the Courts responsibility.
patrick II
Some years ago they zeroed out the cost of admission to the national park for handicapped people (I have such a pass). As far as I know there is still a national park system.
lofgren
@patrick II: So liberating the national parks for development by our captains of industry is another benefit of taking health insurance away from millions of people?
randy khan
Even if the Supreme Court restores order here (which, fingers crossed, it sounds like it might), we still have the problem that a crazy pants idea was heartily endorsed by the district court and then approved by the Court of Appeals. It’s great when the Supremes act like adults, but as anyone who has had children knows, it’s hard to supervise them 24-7.
Yarrow
@Immanentize:
How much is this a thing? Are the Justices (or any judge, really) influenced by the wider culture and thoughts of their legacy enough so that they’d say, “can’t rule like that…it’ll really upend the economy and make me look bad.”
I do understand the Court operates in the real world where such factors have impact. But that also makes it seem like “the law” is just “what we or society think at the moment” all gussied up with fancy words and people wearing robes to give it some kind of legitimacy.
Mo Salad
We were worried, some were even encouraged, about how a quick kill of ACA would affect the Georgia Senate races. Let’s look at the flip side of a quick, “sever out the penalty, keep the law” ruling. Will that depress Republican turnout? “Well, they can’t kill Obummer care even after this? Why bother?” I don’t know the answer, but I’d like to hear other’s thoughts.
patrick II
@lofgren:
If it isn’t taxed it can’t exist.
JPL
@Immanentize: Since some of the members questioned standing, maybe they will still decide that. If so, would they have to wait until spring to do so??
West of the Cascades
@Mo Salad: No way this opinion comes out before February – there will be some anguished dissents no matter what the majority decides.
Immanentize
@Yarrow: Yes they are keenly aware of their legitimacy as it is the basis of their relevance and power. One old quote I like goes something like: “the Court does not blindly follow public opinion but they do read the newspapers.”. In other words, they are of the world and aware of their reputation. There seems to be some empirical research to back that up.
To me, as a pretty close observer, I would say that the longer a justice is on the court, the more the nature of the institution affects them. The young Justice Rhenquist was much more of a bomb thrower than the Chief Justice Rhenquist who had become a very effective institutionalist.
JPL
@Mo Salad: IMO There are many ways of riling up their base, and using Marjorie Greene is just one way. Attacking the SOS was designed to rile up the base, but not necessarily lose the moderates.
Immanentize
@JPL: This opinion ought to take quite a long time to complete. If there were any overwhelming vote in favor of dumping it on standing — maybe 7-2? — it would be possible to get something quicker. It’s a move called “improvidently granted” but the dissenters would still get time to write opinions and distribute them. But given the import, I don’t think this Court will be so bold. So, unlikely anything before February or March at the earliest. June if it is a really divided court.
ETA what West of the Cascades said quicker
JPL
@Immanentize: What did you think of Barrett?
Yarrow
@Immanentize: Thanks. It just seems really weird to be saying things like “Roberts is concerned with his legacy” and so forth when talking about legal opinions.
Immanentize
@JPL: Today or generally? Today I thought she kids floated on the surface. Roberts has been thinking about this statutory scheme for almost a decade.
Ken
@patrick II: @lofgren: If they don’t address the standing issue, does that become an issue for other (non-ACA) lawsuits? That is, can someone appeal a judgment based on lack of standing, using the theory that the Court didn’t address the standing issue in this case, so may have intended to carve out an exception?
Roger Moore
@JPL:
That seems like an argument tailored to convince Gorshuch. He used exactly the same point in McGirt v Oklahoma when arguing that the reservations in Oklahoma still existed: if Congress wanted them gone, it was their job to disestablish them directly rather than undermine them and hope the courts would rule they no longer existed.
laura
@Immanentize: right there with you on the procedural aspect. However, I’m not one of nine wise souls. If it falls on severability-does Chevron stand as well – deference wise?
burnspbesq
@Ken:
Standing is jurisdictional. It can be raised by a party, or by the court sua sponte, at any stage of the proceeding, and lack of standing can’t be waived. At least that’s what the cases say.
burnspbesq
Good quick summary.
https://balkin.blogspot.com/2020/11/before-and-before-and-before.html
burnspbesq
A very cogent analysis of the standing issue, from an unexpected source.
https://reason.com/volokh/2020/11/09/standing-to-challenge-the-individual-mandate/
elm
@Mo Salad: Georgia voters who are Republican-inclined aren’t going to hear any honest news about this or anything else.
Another Scott
@Mo Salad: I always laugh when I see your ‘nym.
And then I recall there’s a football player.
And then I recall there’s a long-distance runner.
And then I try to remember which is which, or are they the same guy? Why aren’t there marathoners playing football in the Premiere League??!
Cheers,
Scott.
catclub
I would argue that the tax has been excised for over two years and the system has worked fine during that time.
artem1s
@Roger Moore:
he also used the same argument in reverse on pre-clearance. Paraphrasing here: If Congress wants pre-clearance, they can pass a Voting Rights Act where all 50 states have to adhere to pre-clearance not just 17 of them.
Steve in the ATL
@Mo Salad: @Another Scott: at any given moment, roughly 30% of the Egyptian population is wearing a Mo Salah jersey
Bill Arnold
@Yarrow:
In the real world, if 10s of millions of people suddenly lose their health insurance because of an insane Supreme Court decision not instantly or preemptively rendered irrelevant by Congress and a POTUS Biden, some fraction of them (or their loved ones) have conditions that need to be treated else they will die, and some small fraction will buy an accurate rifle with a scope and start hunting Republicans, including judges, from long range (or whatever). The size of this subset might be substantially greater than zero; I won’t try to guess.
So there’s that Real World consideration.
We could see a similar descent into political assassination and death squads (including RW) if the Republicans indeed try to steal the election (5+ million popular vote loss, and defacto elector vote loss).
This is a future to actively avoid.
Bill Arnold
The non-precedent severability arguments in this case are very weird to people outside the legal profession. I see the US code as a couple-hundred-year old accretion of patches, and by the rules of real-world causality, their arguments would mean that any laws passed after the ACA would be at least potentially guided or affected by it and should also be invalidated. Is there a several-page explainer available (even if targeted at specialists)?
J R in WV
@Bill Arnold:
I have to make the same assumption for a legislative body that succeeds in removing health care from millions of people. They will make themselves targets for people seeking payback for the torture and death of their kids, older parents, mates and lovers.
Also: it is actually racist genocide to end health care for many Americans merely because it was successfully implemented by a Black President.
During a lethal pandemic.
The very idea is insanely evil, and for these people to not give that a moment’s thought shows their lack of morality.
janesays
@Mo Salad:
I don’t understand why anybody would assume that the case was going to be decided that quickly. It’s extremely unlikely that we’ll see a ruling before June 2021. And that was always the case.