|Oyez' awesome player.|
If you're interested in trying it yourself, here are a couple of pointers to help get you started.
- First, get a friend. Seriously, this kind of thing is much better when discussion occurs than it ever would be alone. I've listened to oral arguments via podcast for years, but as interesting as it may have been, it's never approached the level of interaction you get when multiple people are around to give differing viewpoints in realtime.
- Second, set aside enough time. The oral arguments come in four sections, so you could theoretically do this over four days. The first two, 11-398, are 1.5 hours for the Anti-Injunction Act and 2 hours for the Individual Mandate. The last two, Severability (11-393) & the Medicaid Expansion (11-400) are each 1.5 hours. Remember to allow a minimal five to ten minutes beforehand to go over background, and another half hour afterward to discuss the case in depth. I strongly recommend taking the time to go into more background than just five minutes, but if you're rushed for time, it'll have to do. Just don't be surprised if discussion continues well after the event ends.
- Third, learn the players. Sure, we all know the styles and leanings of the Justices by now, but you also need to know the lawyers speaking before the court, and whom they each represent. It also might be interesting to bring up background on key players, like the fact that Paul Clement clerked for Scalia and served as Solicitor General under Bush for four years.
- Fourth, enjoy the show! Oyez does an excellent job of integrating the audio of the oral arguments along with highlighted text to read along. The free experience they provide to the public is great not just for policy makers and those with a need to know, but also to people like you and me who just want to experience Supreme Court oral arguments for ourselves for fun.
- Finally, don't forget to discuss. There's a lot to talk about in these oral arguments. No matter where you stand on the issue, both sides have plenty of interesting things to say. I know that I was certainly surprised when I first went through them.
If you haven't listened to the oral arguments yet, I encourage you to stop reading here and go set up your own Supreme Court party. It's definitely worth the effort of setting up.
However, if you've already heard the oral arguments, or if you want some extra pointers on discussion points that might be appropriate, I'll give some of my thoughts on each section of the cases.
- Anti-Injunction Act: Do they even have standing to sue?
We're forbidden from bringing suit against a disputed tax until after we pay the tax. If the penalties described in the Affordable care Act are indeed taxes, then the Anti-Injunction Act applies, and this entire suit must be thrown out. While both sides argue it is a tax here, a friend of the court was appointed to argue that it isn't. Absurdity gets highlighted when one realizes that the very next day the states will be forced to argue that it is not a tax after all. Is it ethical for lawyers to take up opposing stances on specific issues each day in order to promote their greater goals?
- The Individual Mandate: Does Congress have the power to force citizens to buy insurance?
The commerce clause has been construed to have broad power over the years, but is it really this broad? If you are not buying insurance, are you part of the insurance market? If government can not only regulate commerce, but also force purchase of insurance, why can't they also force us to buy broccoli? Compare the styles of Verrilli to Clement to Carvin. Notice any substantial differences in how well they argued their case? (I certainly did.)
- Severability: If the individual mandate gets struck down, what happens to the rest of the law?
The Affordable care Act is huge, so even if the mandate is determined unconstitutional there are still plenty of clauses that can stand on their own. But would Congress have passed these smaller laws separately? How far should we look to Congress' intent? What about the fact that the mandate is a necessary provision for other parts of the bill to work properly? And what does necessary really mean, exactly?
- The Medicaid Expansion: The final constitutional issue is that of coercion.
Is it blackmail to threaten to remove all Medicaid funding from states if they don't accept the new Medicaid expansion? What about the fact that it is all-upside for the states? What about if the threat would be illegal to carry out? What about the fact that the states and the Secretary of Health and Human Services have common goals and so the threat doesn't even make sense? And how can it be coercion if Congress is fully capable of dismantling all of Medicaid and retooling it from scratch? What makes the states think they have the right to continue receiving federal aid no matter what Congress decides? Note Verrilli's closing remarks where he turns to arguments of ethics rather than law to urge Justices to uphold the Affordable Care Act, and Clement's casual dismissal of them.
Surprisingly, I found myself extremely impressed with Mr. Clement's arguments. Of course, I believe healthcare is dreadfully important to have for all, and I desperately want the court to uphold the Affordable Care Act. But I want this from a moral standpoint, which is different than a legal standpoint. I have to admit that Clement's arguments in the Individual Mandate section were quite persuasive. To be honest, it just further irritates me that Congress did not just pass a single payer system, which would have been perfectly constitutional no matter how you look at it. As it stands now, I'm honestly not sure what the correct legal thing to do is, and that's a disheartening admission to make.