The video above excerpts some of the excellent discussions on CSPAN surrounding the arguments taking place this week. I highly recommend it for an overview. The second part will be at the end of the post. Today's arguments will center
March 27, 2012

[h/t Heather at VideoCafe]

The video above excerpts some of the excellent discussions on CSPAN surrounding the arguments taking place this week. I highly recommend it for an overview. The second part will be at the end of the post.

Today's arguments will center around the individual mandate, and Justice Roberts may have tipped his hat on a back-door reason to uphold the mandate. In Monday's argument, this exchange occurred:

MR. KATSAS: What the amicus effectively seeks to do is extend the Anti-Injunction Act, not just to taxes which is how the statute is written, but to free-standing nontax legal duties. And it's just -­

CHIEF JUSTICE ROBERTS: The whole point -­the whole point of the suit is to prevent the collection of penalties.

MR. KATSAS: Of taxes, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense.

MR. KATSAS: It's entirely separate, and let me explain to you why.

CHIEF JUSTICE ROBERTS: It's a command. A mandate is a command. If there is nothing behind the command. It's sort of well what happens if you don't file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.


Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.

As Brian Beutler noted, these remarks appeared to signal an alternative way to uphold the mandate:

That wasn’t what the challengers wanted to hear. A key feature of their argument is that the individual mandate is distinct from the fine the government will assess on people who fail to purchase insurance. They say the case isn’t about Congress’ power to tax or penalize people but rather about its power to force people to take actions they may not want to take. Roberts dismissed this distinction.

The question now is how far-reaching the implications of that dismissal are. It’s possible that Roberts was linking the mandate and its enforcement mechanism for the purpose of answeringa much narrower question — that it wasn’t a tip-of-the-hand at all. But if the two measures are linked, then the court could easily conclude they both stem from the same power, and give them the green light.

If you were unfortunate enough to have watched the crowds in front of the Supreme Court Monday, or listened to the C-SPAN callers who were clearly drinking a funny brand of tea, then you know this is the argument they're all making. Their central argument is that they should not be forced into a contract they don't want. The problem with that argument is that they're not forced into a contract because opting out of health insurance means they will pay the penalty.

It certainly could have been a red herring, but if I were Mr. Katsas, I'd be ready to answer that argument in greater detail this morning.

Katsas gave a bit more of his preview of Tuesday's arguments against the mandate in his response to Justice Roberts:

MR. KATSAS: The injury -- when that subject to the mandate, that person is required to purchase health insurance. That is a forced acquisition of an unwanted good. It's a classic pocketbook injury.

But even if I'm wrong about that question, Justice Kagan, the question of who has standing to bring the challenge that we seek to bring seems to me very different -- your hypothetical plaintiff is very different from the actual plaintiffs. We have individuals who are planning for compliance in order to avoid a penalty, which is what their affidavits say. And we have the States, who will be subject no doubt to all sorts of adverse ramifications if they refuse to enroll in Medicaid the people who are forced into Medicaid by virtue of the mandate.

Also this, as a preview for Wednesday's arguments about Medicaid and unfunded mandates:

[States] are injured by the mandate because the mandate forces 6 million new people onto their Medicaid rolls. But they are not directly subject to the mandate, nor could they violate the mandate and incur a penalty.

I expect things to be a bit more tense today, as the true heart of the Affordable Care Act is dissected and laid out before the nine justices. As soon as the audio is released, I'll listen and summarize it for you here. In the meantime, enjoy a bit more of the CSPAN panel's analysis, again courtesy of video clipping rockstar Heather:

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