The SCOTUS and ACA: Live Coverage

Bump and Update (TL):

Thursday morning, starting at 9 am ET, Daily Kos Radio will be presenting live coverage and reaction to the Supreme Court's momentous decision on the constitutionality of the Affordable Care Act. You can listen here. We'll be taking calls as well (Skype calls preferred.) What we'll be talking about - via Adam B:

What, exactly, will the Court be deciding?

1. Whether the Anti-Injunction Act bars a challenge to the individual mandate at this time.

[T]he AIA is an 1867 law which says that you can't sue the government to prevent it from assessing a tax against you; you have to wait to be taxed, and then you can challenge it. So, if the mandate is a "tax," a challenge to the mandate can't be heard until 2014-15. Both the 4th Circuit and conservative stalwart DC Circuit Judge Brett Kavanaugh bought this argument, even though the parties themselves didn't advocate for it, and the Supreme Court appointed outside counsel to advocate this view before it.

2. Is the Minimum Coverage (individual mandate) provision constitutional?

The big question. Either the Court deems the requirement to be within the necessary and proper powers of Congress in tackling a national problem which clearly affects interstate commerce, or it can overturn precedent going as far back as McCullough v. Maryland (1819), which proclaimed: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

And as we all know, oral argument made a ruling of unconstitutionality seem likely, with Justice Scalia's fortuitous flip-flop on the Wickard precedent depressing hopes further. All I'm willing to say right now is that it's more likely than not that the individual mandate will fall, and the folks on Intrade agree.

3. If the Minimum Coverage provision is unconstitutional, what else must go?

This is the severability question. Because the ACA itself did not contain a provision expressing what should happen should any provision be struck down, it's for the Court to decide. There are three options: (a) everything must fall, because the ACA would not have passed without the mandate and it's better to let Congress figure out what Congress wants without a mandate (the opponents' position); (b) the Guaranteed Issue (preexisting conditions protection) and Community Rating provisions must fall, because they're inextricably intertwined with the mandate (the government's position); or (c) everything else still stays (a position argued by no party, but argued by an amicus brought in by the Court).

4. Does the Medicaid expansion constitute unconstitutional coercion of state governments?

Unless the whole bill falls, the Court will have to answer this question regardless of its answers on the Anti-Injunction Act and the mandate: Were the conditions placed on the states via ACA's expansion of Medicaid coverage so coercive as to be unconstitutional? I didn't think this argument grabbed five votes at oral argument, but the Court's five conservatives are full of surprises.

What else to expect: There will likely be many opinions issued as part of this decision; I've set the over/under at 5.5. Pay careful attention as to which parts of which opinions have the support of at least five justices; that's what controls. As Justice Brennan explained to his clerks every year, the most important rule of constitutional law they needed to understand was the Rule of Five: With five votes, the justices can do anything. And this week, they will.

Those are the legal questions to be answered. I think there is also the larger question - is this the first step towards achieving the extreme conservative ideal of undoing the New Deal? Will the Constitution in Exile crowd begin to win the war? Is An Extreme Constitutional Winter Coming?.

Please tune in and call in as well.

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  • Display: Sort:
    I'm such a wuss (5.00 / 7) (#8)
    by Militarytracy on Thu Jun 28, 2012 at 09:12:17 AM EST
    I'm crying, but thank God.  I'm tired of fighting insurance companies.  I'm damaged a bit by what happened to my family fighting for Josh's life before ACA.  Maybe it's okay to cry right now.

    Tracy, its compassion (5.00 / 1) (#10)
    by easilydistracted on Thu Jun 28, 2012 at 09:22:42 AM EST
    not wussiness.

    I know that's not true. (5.00 / 3) (#11)
    by MileHi Hawkeye on Thu Jun 28, 2012 at 09:25:16 AM EST
    You are far from being a wuss.

    It must be pretty smokey in here, 'cause my eyes seem very irratated.


    Crying with you sweetheart. (5.00 / 1) (#12)
    by Angel on Thu Jun 28, 2012 at 09:25:31 AM EST
    So happy for (5.00 / 1) (#18)
    by the capstan on Thu Jun 28, 2012 at 12:12:38 PM EST
    you and Josh!  (We had to carry double insurance for around 4 years because of our first baby, but costs and insurance were incredibly cheap in the 50's!)

    One man's opinion (none / 0) (#1)
    by jbindc on Wed Jun 27, 2012 at 04:29:36 PM EST
    From SCOTUSblog:

    But in the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow.  (I don't have any inside information, nor does anyone else.)  My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.

    His cred.: (none / 0) (#2)
    by oculus on Wed Jun 27, 2012 at 05:48:58 PM EST
    Tom Goldstein Publisher

    Tom is the Publisher and a regular contributor to the blog, which he co-founded with Amy Howe in 2002. He teaches Supreme Court litigation at Stanford and Harvard Law Schools, and has argued 25 cases before the Supreme Court.

    I'll be there if I can figure it out :) (none / 0) (#3)
    by Militarytracy on Thu Jun 28, 2012 at 06:57:34 AM EST
    So far I haven't been able to hear him live yet.  I'm not the most puter savvy.

    Hahahahahahaha (none / 0) (#4)
    by Militarytracy on Thu Jun 28, 2012 at 07:01:03 AM EST
    MSNBC will have Alberto Gonzales on their panel to discuss what goes down at the Supreme Court.  They just insured that I'll be spending my Supreme Court allotment today on and with BTD and Adam B.

    It's MNBC's lame attempt (none / 0) (#5)
    by jbindc on Thu Jun 28, 2012 at 07:39:22 AM EST
    to show that they are "non-partisan" and present both sides.

    Unfortunately their attempt (5.00 / 2) (#7)
    by Militarytracy on Thu Jun 28, 2012 at 09:09:28 AM EST
    makes them look more non-ethical :)  I'd go so far as to even think maybe non-educated and non-qualified.

    Hahahahahahaha (none / 0) (#6)
    by Angel on Thu Jun 28, 2012 at 07:56:06 AM EST
    is right.

    The individual mandate survives as a tax (none / 0) (#9)
    by Dan the Man on Thu Jun 28, 2012 at 09:12:54 AM EST
    From scotus blog:
    The individual mandate survives as a tax
    So the mandate is constitutional. Chief Justice Roberts joins the left of the Court.

    But (none / 0) (#13)
    by jbindc on Thu Jun 28, 2012 at 09:48:11 AM EST
    CHIEF JUSTICE ROBERTS concluded in Part III-A that the individual mandate is not a valid exercise of Congress's power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16-30.

    Awesome!! (none / 0) (#14)
    by indy in sc on Thu Jun 28, 2012 at 10:13:13 AM EST
    What's funny is that I first turned to CNN to try to get the news (I know, that was my first mistake, but I was in the car and could only get it on the web via my phone).

    The banner said the Supreme Court strikes down the individual mandate.  

    I'm not surprised about Fox, but you would think CNN would wait a few seconds to get it right (or at least more accurate).

    It isn't about being right, it's about being first (5.00 / 1) (#16)
    by Angel on Thu Jun 28, 2012 at 10:19:47 AM EST
    To he11 with the facts.

    CNN (none / 0) (#15)
    by jbindc on Thu Jun 28, 2012 at 10:16:40 AM EST
    apparently only saw that the bill was not constitutional under the Commerce Clause or Necessary and Proper Clause.

    They didn't wait for the rest of the story.


    Lyle Deniston (SCOTUSblog) (none / 0) (#17)
    by jbindc on Thu Jun 28, 2012 at 10:40:33 AM EST

    The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition.

    I suspect Roberts wrote the majority decision to (5.00 / 1) (#19)
    by jawbone on Thu Jun 28, 2012 at 12:32:33 PM EST
    ensure there is language he can build on to attack other government social programs in the future.

    In the case of ObamaCare, aka RomneyCare, he probably fell on his sword to protect the interests of Big Private Insurance Companies.

    I think he also plans several cases ahead to get the court to where he wants it to go, somewhere between pre-Magna Carta and Gilded Age, in my humble acerbic and cynical opinion (imhaco).

    By taking this stand, he gives Romney and the R's a huge, easy target for attacks against Obama and, if what I suspect is correct, he's laying the basis for further tearing down of the national safety net programs. And anything which doesn't benefit Big Bidness and the wealthy.


    BTD agrees with you (none / 0) (#21)
    by Militarytracy on Thu Jun 28, 2012 at 02:15:39 PM EST
    I really like you stated it too.  It makes sense to someone like me who isn't a lawyer.

    to ensure there is language he can build on to attack other government social programs in the future

    Military Tracy live on Kos Radio. (none / 0) (#20)
    by oculus on Thu Jun 28, 2012 at 12:36:50 PM EST
    Whoooo hoooo.  I was hoping to hear Josh too.  

    He was in the background (5.00 / 3) (#22)
    by Militarytracy on Thu Jun 28, 2012 at 02:18:14 PM EST
    a bit.  Said that he was happy his insurance coverage is safe and sane.  He laughed at some the joking too, he was excited to hear people talk about this issue in a group setting instead of just his mom and dad ranting around here.  He was jumping on the couches a few times in a neck brace :)