3/30/2012

The Vote on Severability on Obamacare

My guess is that the vote on striking down the entire Obamacare bill could be 6 to 2 or even higher.  If anything this is the one of the four decisions that could be great that 5 to 4.  Why?  Kagan and Sotomayer asked about whether the simplest rule for striking down an entire bill is whether the congress didn't include a sever ability clause.  Then there is this discussion by Breyer and Scalia.  The bill just seems to long to make figure out what to include or exclude to difficult for anyone to determine. From CNS news:


“Could I ask you one question, which is a practical question,” Breyer asked of Paul Clement, the lawyer representing the state of Florida in the case.
“I take as a given your answer to Justice Kennedy,’ said Breyer, “you are saying let's look at it objectively and say what Congress has intended, okay? This is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here's the rest of it, you know.
“And when I look through the rest of it, I have all kinds of stuff in there,” said Breyer. “And I haven't read every word of that, I promise.
“As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, etcetera,” said Breyer.
“What do you suggest we do?” said Breyer. “I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven't argued most of these. As I hear you now, you're pretty close to the SG [the Obama administration’s solicitor general]. I mean, you'd like it all struck down, but we are supposed to apply the objective test. I don't know if you differ very much.
“So what do you propose that we do other than spend a year reading all this and have you argument all this?” said Breyer.
Also on Wednesday, Justice Antonin Scalia jokingly invoked the Eighth Amendment—which prohibits cruel and unusual punishments—when discussing the “severability” issue with Deputy Solicitor General Ed Kneedler. Scalia’s remarks elicited laughter from the audience in the court chamber.
“Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” said Scalia.
“And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?” said Scalia.
“Is this not totally unrealistic? That we're going to go through this enormous bill item by item and decide each one?” he said. . . .

Here is a prediction using some work by Landes and Posner that the individual mandate will be struck down.
The statistics illustrate the stark divide on the court -- the four Democratic appointees, Justices Elena KaganStephen G. BreyerSonia Sotomayor and Ruth Bader Ginsburg -- all aimed their comments at Clement and Carvin by a heavy margin. Three of the five Republican appointees, Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Antonin Scalia, were equally one-sided, aiming the overwhelming majority of their comments at Verrilli.
Kennedy was somewhat less skewed, but was far closer to the conservative side, with comments to Verrilli outnumbering those to Clement and Carvin by a 2-1 margin.
The statistics also support another observation court watchers have made -- Breyer is by far the wordiest justice. 

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