Warm Southern Breeze

"… there is no such thing as nothing."

Day 3: SCOTUS hears final PPACA case arguments

Posted by Warm Southern Breeze on Wednesday, March 28, 2012

It’s not looking good for the petitioners.

And to give Mr. Paul D. Clement his props, he has a phenomenal presentation, and has a wonderful presence, has a very rapidly keen response to the Justices questions. He is definitely on top of his game. However, as good as his performance may be, it is my opinion that his arguments will not sway the court.

Mr. Clement was formerly Solicitor General of the United States 2004-2008.

The Court heard arguments today, Wednesday, March 28, 2012, on the Severability issue and Medicaid issue of the Patient Protection and Affordable Care Act cases.


1. Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia’s approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress’s power to interfere with state sovereignty?

3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress’s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?

National Federation of Independent Business v. Sebelius
Docket Number: 11-393
Date Argued: 03/28/12

Hear the mp3 audio file here.

Read the transcript as a pdf file here. SCOTUS transcript, NFIB v Sebelius, Wednesday 3/28/12, Case# 11-393

Florida v. Department of Health and Human Services
Docket Number: 11-400
Date Argued: 03/28/12

Hear the mp3 audio file here.

Read the transcript as a pdf file here. SCOTUS PPACA-FL v DHHS-3/28/12-11-400

And now, your moments of Zen:

JUSTICE BREYER: I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation, the CLASS Act, those have nothing to do with the stuff that we’ve been talking about yesterday and the day before, okay? So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own. The Indian thing about helping the underserved Native Americans, all that stuff has nothing to do. Black lung disease, nothing to do with it, okay? So that’s — do you know what you have there? A total off-the-cuff impression. So that’s why I am asking you, what should I do?

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
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?
JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

JUSTICE SOTOMAYOR: I thought that the 26-year-olds were saying that they were healthy and didn’t need insurance yesterday. So today they are going to bankrupt the -­

JUSTICE SCALIA: Mr. Farr, let’s — let’s consider how — how your approach, severing as little as possible, thereby increases the deference that we’re showing to — to Congress. It seems to me it puts Congress in — in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere. You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new Act. You’ve got to get 60 votes to repeal it. So the rest of the Act is going to be the law. So you’re just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I’m sure. Do you really think that that is somehow showing deference to Congress and — and respecting the democratic process? It seems to me it’s a gross distortion of it.

JUSTICE KAGAN: Mr. Clement, can I ask you just a matter of clarification? Would you be making the same argument if, instead of the Federal Government picking up 90 percent of the cost, the Federal Government picked up 100 percent of the cost?

MR. CLEMENT: Justice Kagan, if everything else in the statute remained the same, I would be making the exact same argument.

JUSTICE KAGAN: The exact same argument. So that really reduces to the question of why is a big gift from the Federal Government a matter of coercion? In other words, the Federal Government is here saying, we are giving you a boatload of money. There are no -­ there’s no matching funds requirement, there are no extraneous conditions attached to it, it’s just a boatload of federal money for you to take and spend on poor people’s healthcare. It doesn’t sound coercive to me, I have to tell you.

JUSTICE KAGAN: Well, let me give you a hypothetical, Mr. Clement.


JUSTICE KAGAN: Now, suppose I’m an employer, and I see somebody I really like, and I want to hire that person. And I say, I’m going to give you $10 million a year to come work for me. And the person says, well, I — you know, I’ve never been offered anywhere approaching $10 million a year. Of course, I’m going to say yes to that. Now we would both be agreed that that’s not coercive, right?

MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from -­

JUSTICE KAGAN: Wow. Wow. I’m offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?

Links for all three days of argument.

11-393 National Federation of Independent Business, et al., , v. Kathleen Sebelius, Secretary of Health and Human Services, et al.,
Petition for Writ of Certiorari
Appendix to Petition
Brief in Opposition
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link.*

11-398 Department of Health and Human Services, et al., v. Florida, et al.
Petition for a Writ of Certiorari
Appendix to Petition
Brief of Private Respondents
Brief of State Respondents
Reply Brief
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link* for the Anti-Injunction Act issue and this link* for the Minimum Coverage Provision issue.
Audio/Transcripts (Monday)
Audio/Transcripts (Tuesday)

11-400 Florida, et al., v. Department of Health and Human Services, et al.
Petition for Writ of Certiorari
Brief in Opposition
Reply Brief
The American Bar Association has provided a link to the briefs at the merits stage of this case at this link.*
Audio/Transcripts (Morning)
Audio/Transcripts (Afternoon)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: