If It Doesn’t Walk Like a Duck …
Duck Hunting, Day 2
The first two interim reports of the oral arguments on severability are up at SCOTUSblog. Paul Clement, arguing that the whole law should fall if the individual mandate fails, was hit with tough questions from both both wings of the Court.
The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.
Ed Kneedler, the government’s lawyer, had a tough time from the conservative justices who wanted to know if he expected them to go through the whole 2700 page law to pick out what survived and what failed along with the mandate. Justice Scalia suggested that requiring them to do that was barred by the Eighth Amendment. [Update from the transcript.]
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
MR. KNEEDLER: Well -
UPDATE–The severabiliy arguments are done, and SCOTUSblog has brief recaps posted. Tom Goldstein notes:
Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act.
Lyle Denniston comments that the idea of having to slog through the whole bill to decide what to keep may affect some votes.
A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They did not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Congress’ capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”
UPDATE 2–CNN’s Jeffery Toobin is still pessimistic (H/T, Real Clear Politics):
This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. … [I]t seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?
UPDATE 3–Ed Morrissey comments:
What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.
UPDATE 4–Nina Totenberg at NPR is beginning to change her tune:
It looked today that if there are five votes to strike down the mandate, there might be five votes to strike down the whole law. Every time the court observers say the court would never go that far, it would never strike down the law—think again. This court is dramatically more conservative than it has been in many, many decades. It is quite prepared, quite capable of going farther than people expected.
UPDATE 5–The Medicaid arguments are done. Tom Goldstein has a first report at SCOTUSblog.
UPDATE 6–Ann Althouse ends her comments with this:
And who can ever forget: “We have to pass the bill so you can find out what is in it”? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.
UPDATE 7—Andrew Klavan explains why the MSM and the government’s lawyers were caught flatfooted by some of the questions asked during the oral arguments.