This update from XPOSTFACTOID showed up in my inbox. If Roberts and Kavanaugh continue on the same path they have started out on initially, it appears the case brought about by Texas may fail. Briefly, here are some points made.

November 10, 2020 in oral argument; California v. Texas  Roberts appears equally skeptical about this argument from intent. In oral argument yesterday, Kyle Hawkins, arguing for Texas, made the case:

“I think it’s critical that, in 2017, Congress could have excised the legislative findings in 18091 [the assertion of severability], but it chose not  to do so. It could have excised —

Roberts interjected:

Well, but I mean — I — I certainly agree with you about our job in interpreting the statute, but, under the severability question, where — we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.

In Roberts’ King v. Burwell decision: Congress repealed the individual mandate penalty, not the entire law.

Erwin Chemerinsky Explains Severability

A principle of constitutional law is called “severability.” When a court declares a part of a law to be unconstitutional, the question is whether the whole statute should be struck down or whether the offending provision is severable from the rest of the law. In deciding whether the unconstitutional provision is severable from the rest of the statute, a court asks whether the legislature would have adopted the law without the invalidated provision.

Strangely, Texas Judge O’Connor did not find any provision of the law unconstitutional. Instead, he said Congress’ repeal of the tax made the rest of the law unconstitutional because it likely would not have been adopted without the enforcement mechanism for the individual mandate.

Severability analysis does not apply at all because no part of the law was declared unconstitutional. I (Erwin) cannot think of any precedent for the proposition that Congress, by choosing to repeal a small part of a law, creates a basis for holding the entire statute unconstitutional.

The test for severability is whether Congress likely would have adopted the rest of the statute without the provision declared unconstitutional. Here, Congress provided an answer to the question. In 2017, Congress rejected a bill that would have repealed the Affordable Care Act. Also, when Congress repealed the tax penalty, it could have repealed the entire law, but didn’t do that. That seems overwhelming evidence that Congress believed that the rest of the law could survive without the tax penalty provision.

O’Connor focuses on whether the law would have been adopted in 2010 without the tax penalty. But this is the wrong question. The issue is what Congress desired in 2017 when it repealed the tax penalty of the Affordable Care Act. Put another way, it surely would be constitutional for Congress to enact a version of the Affordable Care Act without the tax penalty provision. Accordingly, there is no reason why a statute without it is unconstitutional.

Justice Kavanaugh stated even more clearly that the mandate appeared severable from the rest of the law. A rooted enemy of the ACA, Justice Alito suggested the intent of the Congress in 2017 couldn’t be guessed at, He also acknowledged implicitly the mandate has proved “severable” in that the ACA has not failed without the mandate.

Reporting from MedPage Today; Tim Jost, JD, emeritus professor of law at the Washington and Lee University School of Law: “Nearly every question in the first round of oral argument centered around standing — that is, whether the Republican states are affected by the penalty’s removal

“I think this strongly suggests that at least some of the justices had some real questions as to whether the plaintiffs had any right to be in court at all.

Miles Zaremski, JD, a healthcare attorney in Chicago and MedPage Today columnist, said in an email that some of the justices appeared “skeptical” about plaintiffs’ claims of injury from the burden of additional paperwork for enrollees, particularly Medicaid enrollees.

Even Justice Clarence Thomas, who rarely speaks during oral arguments, questioned whether the court was “‘shadow boxing’ in the sense that how can there be a threat to those states if there is no cognizable injury to them,”

Some snippets of information I pulled from the two sites. I have also included the article links for you to read the entire piece. Avail yourselves . . .

More information when I get it.

ACA Ok? Once again, Chief Justice Roberts seems to dismiss an argument from intent,” XPOSTFACTOID, November 11, 2020

ACA at Supreme Court: Justices Appear Sympathetic to Keeping Law, MedPage Today, November 10, 2020