Wednesday, March 28, 2012

HHS v Florida, Round 3

Clicky for transcripts.

Round 3, the final round of arguments occurred this morning (I didn't review the Medicaid arguments). Let's get into it.

The Players:

PAUL D. CLEMENT, ESQ., Washington, D.C.; on behalf of Petitioners.
EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondents (ed - BOOOOOOOOOOOOOO WE WANT VERILLI BACK)
H. BARTOW FARR, III, ESQ., Washington, D.C.; for Court-appointed amicus curiae.

Summary

Clement handles the initial deluge well enough. Justice Sotomayor takes the vanguard and actually makes some very good points, such as stating if the mandate is unconstitutional, then it's congress job to decide to either rework the bill or scrap it. I agree. This also means I probably could see a way the mandate would be severable.

Clement argues that since the legislation at pg 43a states that the mandate is essential, it is unseverable. Not bad. I just don't think the justices were that convinced. Justice Ginsberg does point out that there are provisions in the legislation (e.g. Black Lung Act) that would remain unaffected if the mandate were to drop out. I agree, but note that such extraneous legislation was put on board as a rider. Which happens all the time, and doesn't change the fact that while in the periphery, it is still part of the legislation. Nice try, Clement.

Justice Kennedy asks for Mr. Clement's opinion on how he would proceed with the decision on severability. Clement starts off with stating to examine the text, and then examine intent. Justices Kagan, Sotomayer, and Breyer turn the arguments inside out. Justice Alito tries to step in, but Clement kind of falters here. However, he did produce one gem-see the first highlight below. Moving on.

Chief Justice Roberts steps in and does mention that many of the votes were in response to these riders, such as the infamous "cornhusker kickback" that was the final vote. Clement argues the potential of leaving the unaffiliated riders as they are and going after the more mandate relevant legislation. Personally, I don't see it happen. Onto the Deputy SG.

Speaking for the government is a guy named "Kneedler". There's a cheap joke there, I just can't find it.

The conservative justices ask basically the same question; is Congress to decide what stays or goes? Or does the Court. Kneedler makes a good case for the former. Starting at page 36, Justice Sotomayer pretty much takes over for Mr. Kneedler.

See second highlight below. Kneedler asks the court to read the document and rely on text as well, albeit for the opposite reasons that Clement wanted.

From this point, the Justices, both right and left, are making Kneedler's case for him. Justice Kennedy might have tipped his hand a bit during the questioning during an important exchange at this point. See the third highlight below.

Sotomayer at this point has to take over again for Kneedler.

Arguments from multiple Justices, including Scalia stating if the mandate is cut out, they have no idea what the implications are on the other portions of the legislation. Again, I agree. This thing is a leviathan.

One of the last questions asked by Chief Justice Roberts has to do with the name of the act itself, vis-a-vis that if there is no mandate, can this legislation really be titled "affordable"? I see his point, but this isn't the first piece of legislation that's had an incredibly misleading title.

Justice Ginsberg at p.54 basically answers another answer for the government. I see a pattern here.

I didn't bother with the Amicus Curiae. Actuarial mixed with the legal tunes me out a bit. Also, for a "friend of the court" he faced an inquisition. It did produce highlight number four, though. See below.

In closing statements reserved for the state of Florida, Sotomeyer reasserts the arguments against. This is annoying. Clement finishes with saying that the mandate isn't just a tool to raise the necessary funds for implementation; it's the main tool. I don't buy it.

And that was it for the morning. Onto the highlights:

p.26
MR. CLEMENT: At a certain point, I just think that, you know, the better answer might be to say, we've struck the heart of this Act, let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days, it won't be a big deal. If it's not, because it's very -
(Laughter.)
MR. CLEMENT: -- well, but -- I mean, you can laugh at me if you want, but the point is, I rather suspect that it won't be easy.

Tonight, Mr. Clement is going to have that part read back to him and he will laugh.

p.37
MR. KNEEDLER: -- blend into -- blend into discretion and, in turn, blend into the merits of the severability question. And as to that, just to answer a question that several Justices have asked, we think that severability is a matter of statutory interpretation. It should be resolved by looking at the structure and the text of the Act, and the Court may look at legislative history to figure out what the text and structure mean with respect to severability. We don't
JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
(Laughter.)
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?
(Laughter.)
JUSTICE SCALIA: Is this not totally unrealistic? That we're going to go through this enormous bill item by item and decide each one?
MR. KNEEDLER: Well -
JUSTICE SOTOMAYOR: I thought the simple answer was you don't have to because -
MR. KNEEDLER: Well, that is -- that is the -
JUSTICE SOTOMAYOR: -- what we have to look at is what Congress said was essential, correct?
MR. KNEEDLER: That is correct, and I'd also like to -- going -- I just want to finish the thought I had about this being a matter of statutory interpretation. The Court's task, we submit, is not to look at the legislative process to see whether the bill would have been -- would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count. That is not the Court's function.
JUSTICE KAGAN: And, Mr. Kneedler, that would be a revolution -
MR. KNEEDLER: Yes.
JUSTICE KAGAN: -- in our severability law, wouldn't it?
MR. KNEEDLER: It would.
JUSTICE KAGAN: I mean, we have never suggested that we're going to say, look, this legislation was a brokered compromise, and we're going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.
Instead, we look at the text that's actually given us. For some people, we look only at the text. It should be easy for Justice Scalia's clerks.(Laughter.)
MR. KNEEDLER: I think -- I think that -
JUSTICE SCALIA: I don't care whether it's easy for my clerks. I care whether it's easy for me.
(Laughter.)
MR. KNEEDLER: I think that -- I think that's exactly right. As I said, it is a question of statutory interpretation.

Translation: it's 2700 pages long. Either you or Congress tell us what's severable with the mandate. Good stuff here.

p.43
JUSTICE KENNEDY: But I still don't understand where you are with the answer to Justice Alito's question.
Assume that there is a -- a substantial probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court's function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?

Notice anything? "Significant possibility"? Yeah, I'm reading way to much into the statement but I don't care.

p.67
JUSTICE KENNEDY: So do you want us to write an opinion saying we have concluded that there is an insignificant risk of a substantial adverse effect on the insurance companies, that's our economic conclusion, and therefore not severable? That's what you want me to say?
MR. FARR: It doesn't sound right the way you say it, Justice Kennedy.
(Laughter.)

That was pretty funny. The lesson here is don't bullshit the court or interject your own ideas into the discussion in this position, or you will be called out.

Final Analysis

It was very unsettling to see Ginsberg, Kagan, and Sotomayor take over at times for the government. It reeked of desperation; one could only wonder why. Maybe because they didn't want Obama to look bad in his selection in SGs. Maybe they know that their position was shellacked yesterday and their side needs some kind of victory.

The Judges all seemed very apprehensive about striking down the entire legislation if the mandate does not pass muster. And they should be. It's 2700 pages of legalese which almost nobody has read. Severability isn't in the text of the document, and intent is kind of hard to prove. It's not in the Court's power to pick and choose which programs stay. Lastly, and most importantly, if the court were to go back to examine this document it would be a waste of the Court's time.

I think they will find the mandate to be severable (say 7-2, with Justice Thomas and either Justices Alito or Scalia dissenting) or not make a ruling and just kick the filthy Obamacare back to Congress. That in itself would be a winner, because I don't think Congress wants to pass that very unpopular, and unConstitutional piece of legislation again. Especially if they have to add the word "tax".

Final analysis and predictions to follow.

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