There will be two arguments today. At 10:00 a.m., the Justices will consider whether the rest of the law will survive if in fact, they find the mandate to be unconstitutional. Then at 1:00 p.m., they will consider whether the expansion of Medicaid within the Patient Protection and Affordable Care Act is unconstitutional.
First, to the issue of severability (the legal term for just throwing out a piece of the law), the government’s side will not be argued by U.S. Solicitor General (SG) Donald Verrilli on this question. It will be argued by Deputy Solicitor General Edwin Kneedler. He will have only half of the time allotted to argue for the law’s survival because, interestingly, the government will not argue that the Court should keep the entire law aside from the mandate. They will actually argue that there are other sections that must be thrown out if the mandate is found to be unconstitutional, something that might bolster the argument on the other side.
The sections they say cannot survive are also some sections dealing with requiring insurance companies to accept all applicants at set rates. More on that in today’s recap after the arguments, so be sure to check back later today.
As a result of the government’s unwillingness to argue that only the mandate should be thrown out, the Court again assigns that argument to independent Washington, D.C., appellate attorney, H. Bartow Farr III.
Arguing for the other side and representing the states is Paul D. Clement, who shone at yesterday’s hearings. He will be arguing that the individual mandate is the foundation that holds the entire Act together and that if it is found to be unconstitutional, the Court should throw out the entire law.
Second, the Medicaid expansion. The crux of this question is that the federal government did not condition the requirement that states expand the eligibility threshold of Medicaid assistance on federal money, but instead on continued participation in the Medicaid program as a whole.
The government will argue there is really no difference there but that this is something that the Court has routinely accepted in the past.[Be sure to check back later today for a complete recap of the proceedings.]
Day 2 Recap Part I: Government Crash
Day 2 Recap Part II: The States Shine
Day 1 Recap: Skepticism Abounds
CWA’s Guide to Health Care Oral Arguments at the Supreme Court