It is probably not the case that the Supreme Court is poised to strike down the entire Affordable Care Act if it finds just one provision of it unconstitutional. Among other things, after conservative superlawyer Paul Clement spent nearly twenty minutes trying to convince a skeptical panel of judges that the whole law must fall, his conservative ally Justice Alito asked Clement a question no advocate ever wants to hear: “What would your fallback position be if we don’t accept the proposition that if the mandate is declared unconstitutional” the entire statute must fall? Apparently, even the Supreme Court’s right flank was considering other options besides Clement’s overreaching theory.

Unfortunately, however, the justices gave his proposal far more credit than it actually deserves. Under longstanding law, a court may not invalidate any constitutional part of a law unless it is “evident” that Congress would have preferred no law to some law. Yet the justices peppered the law’s defenders with uncertain questions about how they should proceed — with Scalia finally outright saying he would simply eliminate President Obama’s signature accomplishment altogether. Every single one of these questions were inappropriate. Given the exceedingly high presumption in favor of retaining as much of the law as possible, the justices must resolve any of their uncertainties in favor of the Affordable Care Act.

The Court’s conservatives did not get this. Worse, Justice Kennedy at one point seemed to suggest the Court’s duty was to resolve any uncertainties in favor of the insurance industry:

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.

To be fair, it is not entirely clear how Kennedy’s fears cut, and as Lyle Denniston suggests, they could ultimately wind up saving the law. If Kennedy is genuinely concerned that any decision striking down the individual mandate will risk nuking the insurance industry, he could ultimately conclude that the least worst outcome is simply to uphold the entire law. Indeed, the problems created by trying to remove just one provision from a comprehensive economic regulatory scheme demonstrate the wisdom of a decision Kennedy previously joined saying that the justices should not generally be in the business of doing so.

If they ultimately decide to throw out the entire law, however, the result will be bedlam. Much of the Affordable Care Act has already taken effect, and cannot simply be stopped on a dime tomorrow:

• Stripping Young People of Care: At least 2.5 million young people now have insurance because of the Affordable Care Act. All of them would be cast back into the wilderness if the whole law were struck down.
• Blowing Up Medicare: Approximately 100 million Medicare claims are processed each month using a formula that was altered by the Affordable Care Act. If the entire law were struck down, new rates could not be calculated under the old, pre-ACA formula until after a rulemaking process that can take months before is completed. The result would be massive delays in payments to health providers throughout the country.
• Pulling The Rug Out On Retirees: The Affordable Care Act also provides thousands of Americans the opportunity to retire early and still remain insured until they become eligible for Medicare. Striking down the entire law could yank insurance away from many near-elderly Americans who retired solely because of the promise that the Affordable Care Act would be there for them.
• Ungrateful States: Many of the states that are currently challenging the law have nonetheless accepted millions of dollars worth of grants under the Affordable Care Act. If the law is struck down, it’s likely that this money would need to be returned immediately, further stressing already tight state budgets.

Simply put, today should have taught the justices a lesson. There is a reason why the Constitution leaves difficult questions of economic policy to elected officials and not to unelected judges. These choices are difficult, they are not easily unwound and they should be made by someone who actually has a mandate from the people to make them.

The Constitution’s words enabling Congress to “regulate commerce…among the several states” gives the United States broad authority over economic matters — although non-economic regulation is far more suspect. Early in today’s argument, however, several of the justices appeared poised to impose an entirely novel limit on Congress’ authority — suggesting that laws which require, in Justice Kennedy’s words, an “affirmative duty to act to go into commerce” is somehow constitutionally suspect. So there were no shortages of pointed questions about the Affordable Care Act’s requirement that everyone either carry health insurance or pay slightly more income taxes.

There are two reasons why this requirement is necessary. The first is that, because the law prohibits insurers from denying coverage to patients with preexisting conditions, it must also ensure that healthy people enter the insurance market before they become sick. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers. The second reason relates to a problem with our health system that long predates the Affordable Care Act. Because emergency rooms must provide at least some degree of care free of charge to people who cannot afford it, these costs wind up being transferred to persons with insurance — driving up annual premiums as much as $1,100 on the average patient.

Initially, the Court’s conservatives appeared highly credulous of the plaintiffs’ false claim that upholding the health reform would necessarily enable the federal government to do absolutely anything. Solicitor General Don Verrilli addressed this question by explaining that the health care market is unique in that it is the only market that everyone inevitably participates in — we all get sick at some point — and that, because of health care’s sudden and unexpected costs, people typically pay their health bills through insurance. Thus, he explained, because everyone is already caught up in the health care market, the Affordable Care Act does not impose any kind of “duty…to go into commerce” — it merely tells people who are already in the health care market to make sure they pay for their health costs through insurance.

While Verrilli was still at the podium, the Court’s conservatives did not seem to buy this claim. A ray of hope emerged at the end of the oral argument, however, when Justice Kennedy expressed a somewhat nuanced view:

[T]he government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

There’s a lot going on in this statement. On the one hand, Kennedy is clearly skeptical that, if the Court says this market is unique, the government won’t simply argue that the next market is also unique in the next case. On the other hand, Kennedy also appears sympathetic to the second reason why the mandate is essential — that the problem of uninsurance leads to billions in health care costs being transferred to other health care consumers. A young person who forgoes health insurance is “uniquely proximately very close” to affecting the health care costs of others, and that may be enough to get Kennedy’s vote to uphold the law.

The big loser in all of this debate, however, is the Constitution itself. The Constitution says nothing about unique markets. Or about the need to impose artificial Congress authority to regulate the nation’s economy. It simply says that Congress can “regulate commerce.” The idea that a law which regulates 1/6 of the nation’s economy is not regulating commerce is, frankly, absurd. Nor was there ever any risk that a decision upholding health reform would lead to all things being permissible. There are many things that are not commercial — federal murder laws, assault laws, child neglect laws or sexual morality laws, for example. A law regulating our entire national health care market, however, is clearly and obviously constitutional.

Justice Kennedy may inevitably vote to uphold the law — he may even bring Chief Justice Roberts along with him — but, whatever the Court does this term, it appears increasingly likely that we live under the constitution of Anthony Kennedy, and that we no longer live under the Constitution of the United States.

Jonathan Cohn notes an odd quirk about a recent American Bar Association poll showing that 85 percent of legal experts polled by the ABA believe that the Affordable Care Act will be upheld by the Supreme Court. The same experts are more likely to pick conservative Chief Justice John Roberts than slightly less conservative Justice Anthony Kennedy as the most likely conservative to uphold the law:

The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.

Although this view of Roberts and Kennedy is counterintuitive, it is not exactly surprising. In 2010, the Supreme Court handed down a case called United States v. Comstock which upheld a law that was very much at the margins of Congress’ lawful authority. In that opinion, Roberts took a somewhat more expansive view of federal power than Kennedy.

Because the Constitution gives Congress authority to “regulate commerce,” the United States has broad, sweeping authority over economic matters, but far more limited authority over non-economic regulation. Comstock upheld a federal law allowing for the indefinite detention of some sex offenders — a law which has virtually nothing to do with the nation’s economy. Nevertheless, Chief Justice Roberts joined the Court’s four more moderate members in a majority opinion upholding this non-economic law. Justice Kennedy wrote a separate concurrence which upheld the law as well, although on somewhat narrower ground.

Both the opinion Roberts joined and Kennedy’s concurrence support the conclusion that the ACA is constitutional. Moreover, unlike the law in Comstock, the ACA is very much at the core of Congress’ lawful authority because the Affordable Care Act regulates a market that comprises one-sixth of the national economy. Nevertheless, the fact remains that, in the only major federal power case that both Roberts and Kennedy sat on together, Roberts took the more expansive view of federal power.

By the all-too-familiar 5-4 split, the U.S. Supreme Court ruled yesterday that workers cannot sue state governments for monetary damages when denied the unpaid time off guaranteed by the Family and Medical Leave Act.

The 1993 law provided those with full-time jobs at private companies of more than 50 employees and employees of federal, state, and local public governments up to 12 workweeks of unpaid, job-protected leave annually for family and medical reasons.

But the Supreme Court’s plurality in this case, Coleman v. Court of Appeals of Maryland, said that citizens can only sue state governments for damages when Congress finds “a pattern of constitutional violations” and tailors “a remedy congruent and proportional to the documented violations.” This sovereign immunity means that, while state employees have the right to take the leave, if the state blocks their exercise of that right, their only recourse is to get a judge to reverse the potential violation, in advance. Justice Anthony Kennedy wrote the opinion of the court for himself, Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito; Justice Antonin Scalia concurred with Kennedy’s result but not his reasoning.

Justice Ruth Bader Ginsberg, on behalf of Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor, took the rare step of reading her dissent aloud in court. She called the result “regrettable” and observed that the Kennedy opinion “pays scant attention to the overarching aim” of the law, which was “to make it feasible for women to work while sustaining family life.” Ginsburg said that the law was a reasonable effort by congress to ensure the equal protection guaranteed by the 14th amendment for public employees facing discrimination.

While the law remains in full force for employees of private employers, the court’s ruling significantly weakens the law’s protections for hundreds of thousands of public employees. With anti-worker rulings like this, it’s no wonder a mere 28 percent of likely voters like the job the Supreme Court is doing.

Yesterday, the Supreme Court heard oral arguments in the “mother of all corporate immunity cases,” by all accounts it did not go well.

The case involves whether Royal Dutch Shell can be held accountable in American courts for allegedly working with the Nigerian government to torture, execute and detain members of an ethnic group under a law holding the most atrocious human rights violators accountable to international norms. To be clear, there are some legitimate reasons why the Supreme Court should be wary of this case — Shell is a foreign corporation, and its alleged actions occurred on foreign soil, so it is not entirely certain that American courts can reach Shell’s actions. There are worrying signs, however, that the Court’s conservatives are prepared to simply declare all corporations, both foreign and domestic, immune from international legal norms. Most notably, the Court’s supposed swing vote, Justice Anthony Kennedy, asked several questions suggesting that he does not believe corporations can be held accountable to this law:

• “[C]ounsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “‘International law does not recognize corporate responsibility for the alleged offenses here.’”
• “[I]n the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.”
• Suppose an American corporation commits human trafficking with U.S. citizens in the United States. Under your view, the U.S. corporation could be sued in any country in the world, and it would — and that would have no international consequences. We don’t look to the international consequences at all. That’s — that’s the view of the Government of the United States, as I understand.

If Justice Kennedy is willing to go this far, there’s a good chance that his four even more conservative colleagues are willing to come along with him. Worse, his questions yesterday suggest that the Court is prepared to apply a baffling double standard to wealthy and powerful corporations. Kennedy, of course, was the author of Citizens United, which declared that corporations have the exact same rights as actual human beings for purposes of spending money to influence elections. Yet, when a corporation engages in mass atrocities, they are suddenly entitled to legal immunities far beyond those available to people.

In other words, corporations are people, my friend — except when they torture.

Last October, ThinkProgress observed that the Affordable Care Act case will probably only be the “second most important health care case this SCOTUS term.” Part of this assessment stemmed from the fact that the case against the ACA is so weak — a leading conservative judge said that it has no basis “in either the text of the Constitution or Supreme Court precedent” — that it is unlikely that the Court will do anything other than uphold that law. But this assessment was rooted as much in the potential harm that could emerge from a far less well-known case called Douglas v. Independent Living Center.

Fortunately, our assessment of Douglas was not correct. By a narrow 5-4 margin, the Supreme Court decided to put off until another day a complex legal issue that could render much of our Medicaid law unenforceable.

As we explained last October, Medicaid is the largest example of a federal/state partnership where the state agrees to set up a program to help its citizens and the feds agree to put up much of the money necessary to keep this program running. When a state agrees to participate in Medicaid, they must also agree to comply with the network of federal laws governing the Medicaid program, including a requirement that the state’s Medicaid program pays health providers enough to “ensure that enough providers will participate in the Medicaid program so that patients will have meaningful health care access.”

Beginning about a decade ago, however, the Court began making it harder for these laws to actually be enforced. Under this new line of cases, it became harder and harder for private individuals to actually enforce Medicaid and similar laws — only an action by the federal government itself could be used to ensure that states comply with the law. Douglas threatened to complete this process, making much of the law largely unenforceable by the people it is intended to protect.

The Court’s four conservatives joined a dissent indicating that they are ready to do exactly that. Justice Anthony Kennedy, however, broke with his fellow conservatives to punt this question until another day — ordering a lower court to consider whether a recent decision by a federal agency makes deciding the issue in the Douglas case unnecessary. In other words, today’s decision is largely a nothingburger.

Should the Court eventually adopt the dissenting justices’ view, the result would be that the availability of programs like Medicaid could swing wildly depending on who is in the White House. As we wrote in October:

[T]he short term effect will be that only the Obama Administration will have the power to enforce key provisions of the Medicaid law — and patients and health providers will just have to trust that Obama’s team does an adequate job of enforcing the law. That may not seem so bad, but what happens if the Obama Administration gets replaced with the Perry Administration or the Palin Administration or the Ryan Administration or some other administration that is actively hostile to enforcing the Medicaid laws? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.

Hopefully, today’s surprising vote by Justice Kennedy to punt this case means that he is not prepared to turn this prediction into a reality.

In an excellent piece highlighting the impact a second Obama term could have on the federal judiciary, the AP’s Mark Sherman provides an important reminder of what is at stake in this election:

The next president, whether it’s Obama or a Republican, also has a reasonable shot at transforming the majority on the Supreme Court, because three justices representing the closely divided court’s liberal and conservative wings, as well as its center, will turn 80 before the next presidential term ends.

The three justices are Ruth Bader Ginsburg, the leader of the court’s liberal wing, conservative Antonin Scalia, and Anthony Kennedy, who leans conservative but on some issues provides a decisive vote for the liberals.

Kennedy, of course, does a whole lot more than simply “lean” conservative. Although his moderate views on issues such as gay rights and detainee treatment are welcome, Kennedy consistently places the interests of wealth individuals and corporations ahead of the more than 99 percent of Americans who cannot afford to buy and sell elections. Kennedy authored the egregious Citizens United decision that unleashed unlimited corporate efforts to buy elections and which led to the creation of Super PACs that empower billionaires to buy off candidates. He’s also consistently voted to allow corporations to force consumers and workers into a privatized, corporate-owned court system that overwhelmingly favors corporations.

If Obama is reelected, however, he could have the opportunity to replace Scalia or Kennedy and transform a Court that has bent over backwards for the one percent into a Court interested in enforcing laws enacted to benefit all Americans. Perhaps this is why super-wealthy donors taking advantage of Kennedy’s error in Citizens United are overwhelming using their vast fortunes to try to defeat Obama.