How to tell look-alike politicans apart.

There are various techniques reporters employ:

I used to make notes next to the names of members I was looking for — intentionally sloppy so they wouldn't be legible to the member as we huddled over my notebook off the floor of the House chamber — of their distinguishing characteristics. "Bald. Bald with glasses. Combover. Close-talker." And there is this classic method, offered by a former colleague on the beat: "My trick is, when you're talking to a member and you don't remember who they are, you ask at the end of the conversation — even if you couldn’t give a shit — 'And how will this affect your district?' So that way it narrows it down, and you can return to the picture book to look them up."

Several great examples of look-alikes at the link, including:

 

Freaky! I'd scribble the illegible note that Yoder is the one with the slightly devilish eyebrows. 

"They would be explaining what your benefits were, then all of a sudden this embarrassed look would flash across their face like, 'Oh, sorry. I guess this doesn’t apply to you.'"

For the new gay members of Congress, "their freshman orientation sessions were a reminder of just how unequally the law treats them, since the entity that cuts their paychecks and provides benefits — the United States government — is barred from recognizing their relationships."

I wish members of Congress would have more opportunities to experience the embarrassment of having to live with the people their laws oppress. And I don't mean just things having to do with whether their colleagues are getting paid enough.

Hillary time!

Here. Testifying on Benghazi to the Senate Foreign Affairs Committee. 

ADDED, 8:31 A.M.: Hillary has a fairly authentic crying quality in her voice as she speaks of embracing the families of those who died in the attack. That comes just after she says in a steely voice that those who serve in countries like Libya know they are going into a dangerous place and cannot work "in a bunker." Risk comes with the territory, and Chris Stevens fully understood where he was going and what he would face.

"As the 113th Congress takes its place in the Capitol, John Boehner has been re-elected speaker of the House..."

With 200 votes, says email, just now, from CNN.

Several conservative members of Boehner’s Republican caucus voted against him and others didn’t vote in protest of what they see as the speaker not holding a hard enough line on fiscal issues.

C-Span is sorry it wrote "Just Plain Dick" and "I Want You to Shut the F#ck Up" at the top of your screen.

"Now on C-SPAN2: Just Plain Dick" appeared on screen at 1:30 a.m. ET on January 1 as Sen. Tom Harkin (D-IA) was speaking in the Senate:



Some people thought C-SPAN had been hacked, but it was just doing its usual thing of cutting away from scheduled shows when there's action on the floor of the House or Senate. The "Now on C-SPAN2" caption referred to a scheduled show, which was a BookTV interview with Kevin Mattson about his book "Just Plain Dick: Richard Nixon’s Checkers Speech and the 'Rocking, Socking' Election of 1952."

"I Want You to Shut the F#ck Up" was another accidentally apt book title that captioned congressional blabbery.

Fiscal cliffhanging on their every word.

Are you?

"So why is compromise so hard in the House?"

"Some commentators, especially liberals, attribute it to what they say is the irrationality of Republican members of Congress."

But the answer could be this instead: individual members of Congress are responding fairly rationally to their incentives. Most members of the House now come from hyperpartisan districts where they face essentially no threat of losing their seat to the other party. Instead, primary challenges, especially for Republicans, may be the more serious risk.

"'Well-placed conservative voice' says Paul Ryan in line to replace Boehner."

Out with the old. In with the new.

Meade says: "It's time for some hope and change."

"Almost every politician professes to admire it, almost none of them are willing to vote for it, and almost none of its supporters know what’s in it."

The Simpson-Bowles plan.

"Congress Holds An Anti-Vaccination Hearing."

"Congressman Dan Burton... rehash[ed] a series of some of the most thoroughly discredited anti-vaccine positions of the past decade."

In a classic political move, the committee called on scientists Alan Guttmacher from the NIH and Colleen Boyle from the CDC to testify, but in fact the committee just wanted to bully the scientists.  Committee members lectured the scientists, throwing out bad science claims, often disguised as questions, thick and fast....

"Democrats Unlikely to Regain House in 2014."

Nate Silver explains.

When Roe v. Wade came out, Justice Ginsburg believed the motivation behind it was fighting overpopulation.

Emily Bazelon gets clarification directly from the Justice about a remark she made in 2009 that seemed perhaps to favor abortion for population control. Justice Ginsburg reframed her point this way:

“I was surprised that the court went as far as it did in Roe v. Wade, and I did think that with the Medicaid reimbursement cases down the road that perhaps the court was thinking it did want more women to have access to reproductive choice. At the time, there was a concern about too many people inhabiting our planet. There was an organization called Zero Population Growth.... In the press, there were articles about the danger of crowding our planet. So there was at the time of Roe v. Wade considerable concern about overpopulation.”

That is, she intuited the Court's motivation, which she says she was wrong about — as she observed in the old remark and repeats now — because the Supreme Court later, in 1980, upheld the political decision to exclude Medicaid funding for abortion, in Harris v. McRae. Ginsburg's 2009 quote was:

[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.

These remarks conflate the Supreme Court and Congress. It could have been that concern about overpopulation motivated the Court in Roe, as it pushed back the states' power to ban abortion and put abortion in a relatively positive light as something women had a right to do. That created the political space within which Congress might have opted to fund abortions for poor women. All that happened in Harris v. McRae was acceptance of the political reality that did ensue, the decision not to pay for abortions. The Supreme Court failed to predict the political fallout from Roe. The Court could still, at the time of Roe, have believed that it was enabling Congress to undertake population-control policy. When Harris v. McRae arose, the Court had new information and a new question to answer. It declined to extend Roe to mean that Congress was obligated to fund abortions as part of Medicaid.

Bazelon blithely concludes:

The history lesson is this: There was a feminist women’s rights argument for legal abortion in the 1970s, which the Supreme Court accepted in Roe v. Wade. And there was a separate and distinct argument about preventing population growth by being pro-abortion, made by groups like Zero Population Growth, which the court did not accept, not in Roe and not later.

The women's rights argument is presentable and defensible. Abortion for population control was and is too ugly — and too close to racism — for comfort. What is uncomfortable is suppressed. In that sense the denial is admirable. But Bazelon's instruction on the "history lesson" is too pat and too sanitized to be taken uncritically.

"Peace/Tax the Profiteers!/Free Press/Free Speech."

A poster for Victor L. Berger, on display at the Wisconsin Historical Museum. Berger ran on the Socialist ticket.

Berger was a founder of the Socialist Party of America in 1901....



Berger ran for Congress and lost in 1904 before winning Wisconsin's 5th congressional district seat in 1910 as the first Socialist to serve in the United States Congress. In Congress, he focused on issues related to the District of Columbia and also more radical proposals, including eliminating the President's veto, abolishing the Senate, and the social takeover of major industries. Berger gained national publicity for his old-age pension bill, the first of its kind introduced into Congress.

Here's a closeup of the small poster at the corner of that display — replete with historical graffiti:

"The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius."

"All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."

So begins the Wall Street Journal editorial, overstating the convergence and — big surprise — setting up a critique of the Chief. His approach to the taxing power, the editors say, is new and scarily unconstrained. They're disturbed that Congress can configure a tax that shapes behavior that it could not simply command, and yet they admit — as they must — that tax law does that all the time. Congress can't compel you to go into debt to buy a house, but you'll pay less taxes if you have a mortgage interest deduction. Congress can't require you to get married, but single taxpayers get stuck with higher tax rates. Why is this new area of taxing so shocking?

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

Will it? Now that everyone's onto this game, the political debate will focus on it. What was unusual in this case was that the opponents of Obamacare were not alerted that the taxing power was the necessary basis for congressional power. Much effort was put into arguing that the commerce power was inadequate, and proponents of the law maintained that it not even serious to argue what has now become the Supreme Court's Commerce Clause doctrine. With the doctrine made explicit, in the future, if Congress tries to regulate individuals for their failure to engage in interstate commerce, everyone will talk about the taxing power. It won't be a stealth power, and it won't be so easy to use.

Moreover, there is a limit on the taxing power as articulated by the Chief Justice: At some point, what purports to be a tax — or what, in litigation, the government attempts to portray as a tax — crosses the line from incentive to compulsion. It actually becomes what Congress called the tax in this case: a penalty. If it's a penalty, Congress is not taxing but regulating, and it will need a power to regulate such as the (now clearly limited) commerce power.

Remember, the reason the so-called "penalty" was deemed a tax was that it was so weak. The amount to be paid to the federal government would usually be "far less than the price of insurance," so that it could often "be a reasonable financial decision to make the payment rather than purchase insurance," especially since the IRS is denied its usual means of enforcing taxes (like criminal prosecution). Roberts said it was a tax precisely because it would not work to compel people to buy insurance. If it worked as compulsion, it really would be a penalty — even if Congress called it a "tax" — and the taxing power would not suffice.

So that's the limit on the taxing power. It doesn't actually work to make people do what Congress wants. Now, it remains to be seen whether the Court will have the nerve to enforce that limitation. What if all the people with relatively low medical expenses make the "reasonable financial decision to make the payment rather than purchase insurance"? It will wreak havoc with the scheme of requiring insurance companies to sell to persons with pre-existing conditions without charging extra. Won't Congress have to up the "penality" until it really does cease to be a non-penalty to get the desired compulsion? When that happens, will the Court draw the line?

"The House of Representatives on Thursday voted to hold Attorney General Eric H. Holder Jr. in contempt..."

"... for failing to disclose internal Justice Department documents in response to a subpoena."

It was the first time in American history that Congress has imposed that sanction on a sitting member of a president’s cabinet."

The vote – 255 to 67, with one member voting present – followed an acrimonious and politically charged debate. Many Democrats walked out of the chamber in protest without voting, accusing Republicans of railroading the motion so they could inflict political damage on the Obama administration during an election year.

"Generic Congressional Ballot: Republicans 45%, Democrats 38%."

A Rasmussen poll of likely voters.

Republicans have consistently held a modest advantage over Democrats on the Generic Congressional Ballot since June 2009....

Democrats enjoyed a seven-point advantage on the Generic Congressional Ballot when Barack Obama took office as president in January 2009....

Obama's new slogan is not only the Wisconsin motto... it's the "No Labels" motto.

The previous post talks about how the new motto is the Wisconsin motto. Adding my new "mottos" tag to old posts, I ran across a post from December 2010 about No Labels, a top-down "grassroots" movement:

No Labels was created by two Washington consultants, the Democratic fund-raiser Nancy Jacobson and the Republican image-shaper Mark McKinnon, and its slick opening event featured throngs of journalists, free boxed lunches and a song written for the occasion by the pop sensation Akon. The group’s slogan, printed on T-shirts and banners, summarizes its purpose this way: “Not left. Not right. Forward.”

Lots of names at the link, nearly all Democrats. There were Republicans, but as Byron York noted at the time:

For some reason, most of the Republicans who showed up were recently defeated officeholders: South Carolina Rep. Bob Inglis, Delaware Rep. Mike Castle, and Florida Gov. Charlie Crist.

Where's No Labels now? Absorbed into the Obama campaign? It's more likely that they are so forgotten that their previous use of the motto had no effect on the Obama campaign's motto choice.

Here's the Wikipedia article on the group, which released a "Make Congress Work action plan" in December 2011. Did you notice? It's a 12-point plan... a 12-step program:

1. Automatic pay docking for Congress if the federal budget is not passed on time
2. An up-or-down vote on all presidential appointments within 90 days of their nomination
3. Changing the rules of the filibuster so as to make the process more difficult to accomplish (by having filibustering senators stand on the floor and speak as long as they can), as well as elimination of filibusters of motions to open debate.
4. Anonymous discharge petitions
5. A five-day workweek in Congress
6. Institution of Question Time between Congress and the President
7. An annual fiscal report delivered to a joint session of Congress, after which everyone present must sign the report
8. A code of conduct banning the taking of pledges from special interest groups
9. Bipartisan monthly gatherings to be held off-the-record.
10. The establishment of bipartisan seating
11. The establishment of a Bipartisan Leadership Council to be made up of the Speaker of the House, the president pro tempore, and Majority and Minority leaders of both houses, and two slots per house for other members to be decided using a lottery
12. The banning of incumbents taking part in negative campaigns against other incumbents

Interesting. Not very grassrootsy, but what do you think?

"Allen West is denigrating the millions of Americans who voted to elect Congressional Progressive Caucus members..."

"... and he is ignoring the oath they took to protect and defend the U.S. Constitution — just like he did... Calling fellow members of Congress 'communists' is reminiscent of the days when Joe McCarthy divided Americans with name-calling and modern-day witch hunts that don't advance policies to benefit people's lives."

Said Representatives Raul M. Grijalva, D-Ariz., and Keith Ellison, D-Minn., who co-chair of the Congressional Progressive Caucus, whose members Representative West has called "card-carrying Marxists" and "members of the Communist Party."

West's spokesperson defends his remark by saying "The Communist Party has publicly referred to the Progressive Caucus as its allies," which doesn't explain how that makes them "members of the Communist Party."

West just sounds nutty. I'm saying that because I can't even think of a reason why he'd want to talk like that. 

61% of voters think it's likely Obamacare will be repealed.

And 54% favor repeal.

Presumably, that's repeal if the Supreme Court doesn't strike down the law, and 54% expect the Supreme Court to strike down the law, and 50% would like to see that happen. 37% would like the law upheld, and only 26% think that's going to happen. Only 20% of voters think Congress has the constitutional authority to force everyone to buy health insurance.

And here, Scott Rasmussen why the law will die even if the Supreme Court upholds the law and Obama is reelected...

Seventy-six percent [of Americans] think they should have the right to choose between expensive insurance plans with low deductibles and low-cost plans with higher deductibles. A similar majority believes everyone should be allowed to choose between expensive plans that cover just about every imaginable medical procedure and lower-cost plans that cover a smaller number of procedures. All such choices would be banned under the current health care law.
Americans want to be empowered as health care consumers. Eighty-two percent believe that if an employer pays for health insurance, the worker should be able to use that money and select an insurance product that meets his or her individual needs. If the plan they select costs less than the company plan, most believe the worker should get to keep the change.

It's not just the idea of making the choice that drives these numbers, it's the belief held by most Americans that competition will do more than government regulation to reduce the cost of health care. For something as fundamental as medical care, government policy must be consistent with deeply held American values. That's why an approach that increases consumer choice has solid support and a plan that relies on mandates and trusting the government cannot survive.

Time-shifted live-blogging of this morning's Obamacare oral argument in the U.S. Supreme Court.

I've finally got time to curl up with a nice MP3 and transcript. I'm going to treat this like a live-blog, with frequent updates until I get to the end.

UPDATE 1: Paul Clement will attack the expansion of Medicaid. He's talking about whether it's "coercive," because if it is, it won't fit the Spending Power. Justice Kagan wants to know why a "big gift from the Federal Government" is coercion. "The Federal Government is here saying, we are giving you a boatload of money." Page 3. Just a big old boatload of money is coercive, Clement says confidently. But the actual bill has a "very big condition." Kagan interrupts, trying to make her point that a big boatload of money is not coercive. What if someone offered you a job and would pay you $10 million a year. Of course, you say yes, but you're not coerced are you? Clement lays down one of the cleverest teasers I have ever heard: "Well, I guess I would want to know where the money came from."

"Wow. Wow." says Kagan. Has a Supreme Court ever said "Wow. Wow" before? She can't believe you'd do anything other than snap up that money. "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?"

Clement springs his trap: "Sure, if I told you, actually, it came from my own bank account."

Kagan resists. Yes, it's tax money, but the tax money the federal government rakes in is from the taxpayers "acting as" U.S. citizens. It's not the state's money. Their money is the money that's collected from citizens "acting as" citizens of a particular state. Clement re-grounds us "in the real world." People only have so much money, and the more the feds drain out of the people, the less there is for the states to tap into. The point is this "boatload of money" isn't free money. It's money that was taken from the people of the state and then offered back to the state governments, who might have liked to take money directly from their citizens, available to be used for whatever purposes the states have in mind, and not the things the federal government tells them to do.

UPDATE 2: Clement argues that there must be some limit on the Spending Power, on how extreme the "big gifts" — with conditions attached — can be, because "this Court's entire spending power jurisprudence is premised on the notion that spending power is different, and that Congress can do things pursuant to the spending power that it can't do pursuant to its other enumerated powers precisely because the programs are voluntary." Clement has a very difficult argument to make. The states have been taking this money for a long time, and there have been periodic expansions, and the states are told "take it or leave it" (as Ginsburg puts it). He needs to argue that somehow this new expansion is creating something separate and inappropriately connecting it to old money streams from the federal government to the state, which makes it very hard for the state to say no. But it's the fed's money, and they're setting the terms the states have to meet to keep the old income streams flowing.

UPDATE 3: Justice Breyer takes great pains to show that the government might not exercise its option to close up all those old income streams, because it is always under the obligation to act "reasonably." Finally, Justice Scalia breaks in: "Mr. Clement... do you agree -- do you agree that the government has to act reasonably? Do we strike down unreasonable statutes? My God!" With that prompting, I see that it sounds like Justice Breyer was assuring us that we are living in the Lochner Era, when courts assessed the reasonableness of legislation. There's an intense disagreement here, with Breyer talking about the executive branch implementing statutes, which must be reasonable, and Clement and Scalia talking about what is in the statute, which will not be tested for reasonableness.

UPDATE 4: We finally hear from Justice Kennedy, at page 35: "If the inevitable consequence of your position was that the Federal Government could just do this on its own, the Federal Government could have Medicaid, Medicare, and these insurance regulations, assume that's true, then how are the interests of federalism concerned? How are the interests of federalism concerned if, in Florida or Texas or some of the other objecting States, there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do?"

Clement hits Kennedy with a word Kennedy has used himself in federalism cases. (For example, United States v. Lopez.) The word is "accountability." Clement says: "If the Federal Government decides to spend money through Federal instrumentalities, and the citizen is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency."

(Here's Kennedy in Lopez: "The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see The Federalist No. 51, and hold each other in check by competing for the affections of the people, see The Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 'Federalism serves to assign political responsibility, not to obscure it.'... Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.... The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.")

UPDATE 5: The SG says that Congress, setting up this conditional spending program, jumped through all the doctrinal hoops set up in South Dakota v. Dole, but I note that South Dakota v. Dole did say that at some point federal spending amounts to coercion. (It said: "Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.' Steward Machine Co. v. Davis...") And Justice Scalia, alluding to that language, asks what it means. What is this "coercion" limitation?

The SG says that "it's possible to envision a situation in which there's coercion." Hmm. Yeah. But tell us what that situation is?! This is like yesterday, when the SG was asked to state the limit on the Commerce Power, and he just couldn't do it. Now, the SG refers to a condition that fundamentally transforms the structure of the state government, but that refers to a kind of condition, not what would entice/coerce the state into accepting the condition. The Chief Justice points that out: You're not talking about the coercion question. What if the federal government had a condition that you could take or leave, but you'd lose all your federal funding? The SG says "that would raise a germaneness issue," which is a reference to one of the doctrinal hoops in Dole (the condition must relate to the spending program), but the coercion idea is separate  — and surely the SG knows that. Getting the doctrinal points of Dole straight is first year law school stuff. It's like he's playing dumb. It's really annoying, and the Chief Justice is annoyed.

UPDATE 6: The SG persists in saying that it's hard to imagine a situation in which the condition would not violate the germaneness requirement by the time it got coercive. Roberts and Scalia scuffle with him and suddenly Alito comes to the rescue with a great hypothetical:

Let's say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money all of the states now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.

Now, this is a great offer and we think you will take it, but, of course, if you take it, it's going to have some conditions because we're going to set rules on teacher tenure, on collective bargaining, on
curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.

If you take it, you have to follow our rules on all of these things. If you leave it, well, then you're going to have... to tax your citizens, they're going to have to pay the Federal education tax; but on top of that, you're going to have to tax them for all of the money that you're now spending on education, plus all of the Federal funds that you were previously given.

Would that be -- would that reach the point -- would that be the point where financial inducement turns into coercion?

The SG says no! The states have a choice, he says, to which Alito responds: "But if that's the case, then there's nothing left of federalism."

That's a dramatic statement, and the SG only natters away about how there are political constraints on Congress. That is, there's nothing left of judicially enforceable federalism, but we've still got the supposed political safeguards of federalism (i.e., the way Congress will, on its own, restrain itself from too much imposition on the states). This is the SG's theme throughout the arguments this week: It is sufficient to let Congress do whatever it wants.

UPDATE 7: There's a long section of debate about whether the Secretary will use her discretion to cut the states off from all their funds (and whether there's a judicially enforceable limit on that discretion). Suddenly, Justice Kennedy breaks in, and he's using his buzzword again: accountability!

I suppose one test could be -- I just don't see that it would be very workable -­ is whether or not [the loss of funding is] so big that accountability is lost, that it is not clear to the citizens that the State or the Federal Government is administering the program, even though it's a State administrator.

See how that is the same idea he was using back in 1995 in Lopez? The SG blabbers in response (as if he's not too well versed in what moves Justice Kennedy, which you would think would be his primary concern). Kennedy comes back:

In your view -- in your view, does federalism require that there be a relatively clear line of accountability for political acts?

That, my friends, is Essence of Kennedy! But the SG doesn't notice. He doesn't see how exquisitely special that question is. Kennedy puzzles on: "Is that subsumed in the coercion test, or is that an independent one?" Come on, SG! If you're good for anything, tell him it's special! Again, the SG natters, but the nattering contains nothing about political accountability. Kennedy pleads again for attention to his dearest concern:

But do you agree that there still is inherent and implicit in the idea of federalism, necessary to the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the Federal or state government who should be held responsible for their program?... And does coercion relate to that, or is that a separate doctrine?

Finally, the SG addresses accountability: It's the other side who are arguing that they take "unpalatable choices" because they are subjected to "a high degree of political accountability," which they're trying to call "coercion." That misses Kennedy's point. Kennedy wants the doctrine to work to make the different governments accountable to the people. He says: "Well, but I think the answer would be that the State wants to preserve its integrity, its identity, its responsibility in the Federal system."

UPDATE 8: Quite a bit later, Justice Sotomayor endeavors to bring the SG back to Justice Kennedy's accountability theme, but not in a particularly coherent way: "Justice Kennedy asked you whether... it's coercion if no one can be politically accountable. I'm not sure how that could be practically politically accountable because almost every gift -- if the terms are attractive, it would be an un -- unattractive political alternative to turn it down." I think she means political accountability must necessarily be a separate question from coercion. The point is these tremendously enticing offers destroy the state's will to say no. They're not coerced, but they lose their independent political identity, and that is destructive to federalism.

UPDATE 9: The SG talks about liberty: "millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care... they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty." There's freedom inside all this compulsion and coercion, because when the government supplies your needs, then you can enjoy life. That's the argument!

UPDATE 10: Clement, back in rebuttal, riffs on the SG's liberty remarks: "[I]t's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to."

UPDATE 11: There's still another hour! This is the severability part. Clement is up first, arguing that if the individual mandate is stricken down, but the guaranteed-issue and community-rating don't fall along with it, then insurance premiums will "skyrocket."

UPDATE 12: Is the test what Congress would have wanted (whether it would want the whole act to fall if one provision falls)? Scalia suggests that's the wrong approach. The severability question is difficult, as the Court struggles with the sprawling legislation. Clement says there's a "heart" to it, which includes the individual mandate, and the provisions interrelated with it, which will not work the same way without it, and these must fall. Then there's all that peripheral stuff, which could work independently, but Clement calls these things the "hollow shell" of the act, which should fall because they wouldn't have been passed without the rest of the bill. It could also be left standing, he concedes. Everyone seems agitated by the prospect of tearing it all down. 

[THERE'S MORE TO COME, but I can't get to it tonight. It's just too onerous for now. ]