Supreme Court Confidentiality re Health Care Law

[JamesDillon]

Originally Posted by JoeTheJuggler

They were given that question, though. I think "must decide" can mean must dispose of someway. If they decide that the individual mandate AND requiring states to expand Medicaid are both constitutional, then and only then will the question of severability be moot. But I think they actually consider severability in making the constitutional decision. So they might address that question first. (I think it's obvious that Congress didn't intend to pass the insurance reforms without the mandate. That would create a system where people would be stupid to carry insurance until after they need it, which would destroy the health insurance industry.)

At any rate, my understanding of the timeline is that they take their vote in early June, then swap decisions around June 15, but based on those, justices can and have changed their position before the official decision is made.

In every case I can think of in which it's been raised, severability is not adjudicated by the Court unless it first determines that the provision at issue i in fact unconstitutional; I don't see why this case would be different. In any case, it sounds like we agree that Ginsburg's comments shouldn't be read to imply that the Court has in fact decided to strike down the mandate.

Originally Posted by ponderingturtle

I wonder if they will produce a second non siteable decision that can not be precedent setting.

Like Bush v. Gore? No reason to expect that to be the case here. Whichever way it comes down, this will be the new leading case on Congress's Commerce Clause authority.

[Beerina]

I trust the words out of Nancy Pelosi's mouth about as far as I can throw her.


Wait, isn't she about as heavy as a shot put ball? Well, then. About 1/30th as far as I can throw her.

[ponderingturtle]

Originally Posted by JoeTheJuggler

The court must consider the intent of the legislature, and there is abundant evidence that the intent was not to "break the system" in this way. For example, this House investigation into rescission and post-claim underwriting. The term "comprehensive health insurance reform" is used often, sometimes explicitly discussing the necessity of linking the prohibition of these practices with an individual mandate.

And yet the supreme court set up such a broken law with citizens united and challenged the legislature to fix it. So it would not be unique for the court to do that.

[tomwaits]

Originally Posted by ponderingturtle

I wonder if they will produce a second non siteable decision that can not be precedent setting.

As strange as the Bush v. Gore decision is to many, that part of it was pretty normal for the supreme court. I've read many SCOTUS decisions (and others) where they say something like "We are not making any broad rulings on the law. We are simply saying that given the very specific facts of this case, this is our holding. Every case is different, we don't know what will come up in the future, etc etc etc." The court is always trying to keep their decisions as narrow as possible, but it often doesn't work, especially when there are few supreme court cases on point in that particular topic.

[JoeTheJuggler]

Originally Posted by ponderingturtle

And yet the supreme court set up such a broken law with citizens united and challenged the legislature to fix it. So it would not be unique for the court to do that.

I disagree. The court struck down as unconstitutional parts of a law, and upheld another law. Their reasoning is there and can be taken as instruction for Congress in crafting future law, but the court disposed of the case before it. The court didn't anticipate any "fix" being necessary.

The court cannot reason that Congress intended (with the ACA) for the individual mandate (and using financial leverage to coerce states to expand Medicaid) to be severable in hopes that those measures would be struck down as unconstitutional while the insurance reforms stood for the purpose of destroying the health insurance industry. There is not only no evidence for such an intent, there is plenty of evidence for what the intent was.

[JoeTheJuggler]

Originally Posted by JamesDillon

In every case I can think of in which it's been raised, severability is not adjudicated by the Court unless it first determines that the provision at issue i in fact unconstitutional; I don't see why this case would be different. In any case, it sounds like we agree that Ginsburg's comments shouldn't be read to imply that the Court has in fact decided to strike down the mandate.

You're right, of course. I guess my point was that one of the questions given to the court was conditional, but that they do all the arguing, reading of briefs, etc. before writing any decision. So they really do have to consider all the questions (even a conditional one) ahead of time. The fact that they spent a lot of time in oral arguments on the severability question doesn't mean that they had already decided any of the questions. The alternative would be to have them issue a decision and then potentially conduct a fresh round of briefs, motions, and oral arguments on the severability question before giving an opinion on the conditional question.

Quote:

Whichever way it comes down, this will be the new leading case on Congress's Commerce Clause authority.

Unless they whiff and decide the suit can't be decided until the provisions of the law take effect. Isn't that what some of the lower courts did? I think some of them ruled that the plaintiffs have no standing because they hadn't come under the individual mandate yet.

I doubt that's what will happen though.

[JamesDillon]

Originally Posted by JoeTheJuggler

You're right, of course. I guess my point was that one of the questions given to the court was conditional, but that they do all the arguing, reading of briefs, etc. before writing any decision. So they really do have to consider all the questions (even a conditional one) ahead of time. The fact that they spent a lot of time in oral arguments on the severability question doesn't mean that they had already decided any of the questions. The alternative would be to have them issue a decision and then potentially conduct a fresh round of briefs, motions, and oral arguments on the severability question before giving an opinion on the conditional question.

I think that's true, though depending on how the conference goes I suppose it's possible that they don't even discuss or vote on severability if it's clear that there's a consensus against invalidating the mandate. I don't see any reason why they would have to, though at the very least each justice must read and consider the severability arguments prior to the conference vote so as to be prepared should the issue need to be resolved.

Quote:

Unless they whiff and decide the suit can't be decided until the provisions of the law take effect. Isn't that what some of the lower courts did? I think some of them ruled that the plaintiffs have no standing because they hadn't come under the individual mandate yet.

I doubt that's what will happen though.

Leave it to a lawyer to challenge any unconditional statement You're right; it could be the case that they dodge the big issues in this decision. I don't expect it to happen, but we can't rule it out.

Originally Posted by tomwaits

As strange as the Bush v. Gore decision is to many, that part of it was pretty normal for the supreme court. I've read many SCOTUS decisions (and others) where they say something like "We are not making any broad rulings on the law. We are simply saying that given the very specific facts of this case, this is our holding. Every case is different, we don't know what will come up in the future, etc etc etc." The court is always trying to keep their decisions as narrow as possible, but it often doesn't work, especially when there are few supreme court cases on point in that particular topic.

There's a big difference between a narrow ruling and one like Bush v. Gore in which the Court's analysis is expressly "limited to the circumstances of the present case" and is never cited again. I'm not aware of any cases other than Bush v. Gore that fall into the latter category; if you are, please cite them.