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Barrett interrupted a lawyer defending the law, California Solicitor General Michael Mongan, suggesting he strayed from a question she asked that involved how the government was tracking who had taken out insurance. The new court judge asked an interesting question about whether the federal agencies sued in the case are actually causing harm to the plaintiffs, but it seems doubtful that the whole challenge can be resolved on these grounds.
Barrett also appeared to flex his textual muscles as he subtly leaned over Breyer late in Tuesday’s arguments, after suggesting that when the law says Americans who aren’t exempt will “buy” health insurance, it really means they are encouraged to do so. .
“Suppose I agree with you and think ‘shall’ is ‘must’ and not ‘should’ and, therefore, that’s an order,” Barrett told Acting Solicitor General Jeff Wall, who pleaded for the Trump administration against the law.
Ultimately, it seemed that Barrett’s role in the case wouldn’t be the oversized role expected in his hearings, but a more modest role. The reason is simple: two of his GOP-appointed colleagues – Roberts and Kavanaugh – seemed unlikely to rescind the status. This would make Barrett’s vote interesting to watch but not critical to the outcome.
Who will stand?
A key question in the case is whether the Red States pursuing an Obamacare overturn action or a couple of individual plaintiffs seeking to do the same actually have the legal capacity to go to court and challenge the law. To do that, they have to show injuries they sustain or are threatened with – it’s not the easiest thing to do with a warrant that everyone since Trump has said is effectively repealed. and will not be applied.
At least two judges have suggested that, in the Trump administration’s haste to overturn the law, it overlooks the dangers to the federal government of allowing any state or virtually anyone to go to court and challenge a law whole on the basis of an objection to a single provision which is not even applied.
“I think it really broadens the standing position really dramatically,” Roberts said, in a riff that sounded more like a statement than a question. “I mean, in this act alone you talk about almost a thousand pages and you leave someone who isn’t hurt by the layout that requires some kind of challenge to go through those thousand pages and choose those he wants to attack. “
Judge Elena Kagan went even further, suggesting that the administration approved a position that could come back to haunt the federal government in court.
“The United States is generally pretty tight-fisted about permanent law, so it surprised me, in the same way it surprised the Chief Justice, that you come here with a theory that I think threatens. to explode. permanent doctrine, ”she said. “Isn’t that something the United States should be very concerned about?”
Wall insisted that speaking out for the plaintiffs in this case would not open the floodgates to prosecution of massive legislation because the protesters here have exceptionally good arguments that the statute as a whole should be quashed if the warrant is unconstitutional.
However, the exchanges recalled the fact that Attorney General William Barr would have opposed the administration’s signing of the state prosecution. Did he foresee the static load that his department would retain from judges to do this?
The pandemic? What pandemic?
The pervasive undercurrent in so many aspects of American life these days – the coronavirus pandemic – was overlooked by Tuesday’s arguments, despite the session focusing on a bill that provides health care coverage for tens of millions of Americans; and significant benefits for a few hundred million more.
There were only two explicit references to the viral outbreak. Judge Clarence Thomas asked at the start of the proceedings whether a person who did not want to wear a mask would have standing to bring a lawsuit over a law requiring the wearing of a mask, even if it did not come with any penalty. . And Mongan, the California solicitor general, noted in passing in one of his court statements that eliminating the law “would throw 20 million Americans out of health insurance during a pandemic.”
Of course, there was another reminder of the virus: The court continues to virtually hear arguments, avoiding the dangers of bringing together judges, lawyers, journalists and the like. A high-profile argument like the one that took place on Tuesday would have been packed to the gills if it took place in the judges’ ornate courtroom across from the Capitol.
The audio-only arrangements were pretty smooth on Tuesday, with only one major issue. Breyer called after a long hiatus during which Roberts didn’t seem to call anyone. The Chief Justice then abruptly interrupted Breyer, prompting the older judge in the court to say somewhat cryptically: “Something happened. I am sorry. My machine did not work. “
A few minutes later, Roberts apologized and returned to Breyer, but he hesitated. “It’s not a problem,” Breyer said. “Go ahead. I’m fine.”
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