It’s All Fun and Games Until Somebody Loses an Eye

This is another guest post from Professor Elizabeth Weeks, with apologies to her that I’m unable to get her account to work.


After three straight days, six hours, plus extra innings on the Medicaid issue, the Justices and litigants got a little punchy, as Nicole observed.  A few of my favorite exchanges:

On severability, statutory interpretation, and textualism:

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?

Later, Justice Kagan, picking up the thread, pressed Mr. Kneedler:

JUSTICE KAGAN: I mean, we have never suggested that we’re going to say, look, this legislation was a brokered compromise, and we’re going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.

MR. KNEEDLER: I think — I think that –

JUSTICE SCALIA: I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.

Justice Scalia, true to textualist form, expressed skepticism at Mr. Farr’s proffered definition of “essential” to the legislative scheme as meaning “conducive to, useful, advancing the objectives, advancing the aims.”

JUSTICE SCALIA: Is there any dictionary that gives that –.

MR. FARR: I’m sorry, Justice Scalia?

JUSTICE SCALIA: — that definition of “essential”? It’s very imaginative. Just give me one dictionary.

On the effect of holding the individual mandate non-severable, Mr. Clement drew laughter for his purposely absurdist suggestion:

MR. CLEMENT: At a certain point, I just think that, you know, the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate. If it’s so easy to have that other big volume get reenacted, they can do it in a couple of days, it won’t be a big deal.

Comedy ensued during the Medicaid argument as Justice Scalia asked Mr. Clement about the meaning of coercion:

JUSTICE SCALIA:  [Y]ou know, the — the old Jack Benny thing, Your Money or Your Life, and, you know, he says “I’m thinking, I’m thinking.” It’s — it’s funny, because it’s no choice. You know?  Your life?  Again, it’s just money. It’s an easy choice. No coercion, right? I mean — right?

Now, whereas, if — if the choice were your life or your wife’s, that’s a lot harder.

Now, is it — is it coercive in both situations?

MR. CLEMENT: Well, yes. It is.


Justice Scalia again tried to clarify:

JUSTICE SCALIA: No, no, no. To say – to say you’re — when you say you’re coerced, it means you’ve been — you’ve been given an offer you can’t refuse. Okay? You can’t refuse your money or your life.  But your life or your wife’s, I could refuse that one.

JUSTICE SOTOMAYOR: Mr. Clement, he’s not going home tonight.

Approaching the coercion question differently, Justice Kagan did Mitt Romney one better:

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?

Without missing a beat, Mr. Clement retorted:

MR. CLEMENT: Sure, if I told you, actually, it came from my own bank account.

All kidding aside, the big issue, all along, has been Medicaid, as I discussed here.  Tuesday’s arguments were troubling enough with respect to the fate of the individual mandate.  But I dare not prognosticate on the fate of Medicaid, not to mention the larger implications for the modern administrative state.  That said, I was heartened that at least some members of the Court seemed to hear key points that we made in a Professors amicus brief on Medicaid.

On the size of the Medicaid program amounting to coercion:

JUSTICE SOTOMAYOR: I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the Federal government in choosing how to structure a cooperative relationship with the States. We’re going to say to the Federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.

. . . .

So I — I just don’t understand the logic of saying States, you can’t — you don’t — you’re not entitled to our money, but once you start taking it, the more you take, the more power you have.

On the States’ insistence that they face loss of all Medicaid funding:

JUSTICE BREYER: What you just said. You said, Congress said, if you don’t take the new money to cover the new individuals, you don’t get any of the old money that covers the old individuals. That’s what I heard you say.


JUSTICE BREYER: And where does it say that?

In a rare fumble, Mr. Clement is unable to provide the cite:

JUSTICE BREYER: I want the part about the funding cutoff.

MR. CLEMENT: Right. And there, Justice Breyer –

JUSTICE BREYER: And that cite section is what?

MR. CLEMENT: I don’t have that with me

JUSTICE BREYER: Well, I have it in front of me.

Justice Breyer then reads 42 U.S.C. Section 1396(c) of the Medicaid statute,

JUSTICE BREYER: It says, “The secretary shall notify the state agency” — this is if they don’t comply — “that further payments will not be made to the state or, in his discretion, that payments will be limited to categories under or parts of the state plan not affected by such failure, which it repeats until the secretary is satisfied that he shall limit payments to categories under or parts of the state plan not affected by such failure.”

So, reading that in your favor, I read that to say, it’s up to the secretary whether, should a state refuse to fund the new people, the secretary will cut off funding for the new people, as it’s obvious the state doesn’t want it, and whether the secretary can go further. I also should think — I could not find one case where the secretary ever did go further, but I also would think that the secretary could not go further where going further would be an unreasonable thing to do, since government action is governed by the Administrative Procedure Act, since it’s governed by the general principle, it must always be reasonable.

So I want to know where this idea came from that should state X say, “I don’t want the new money,” that the secretary would or could cut off the old money?

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