Doug Emhoff Leaves DLA Piper Partnership For White House Role As ‘Second Gentleman’

(Photo by Win McNamee/Getty Images)

We congratulate Senator [Kamala] Harris and our partner Doug Emhoff on this historic accomplishment. We look forward to working with Doug to transition his practice within the firm as he prepares to take on his new role, and we wish him all the best.

— a statement from DLA Piper, confirming that partner Doug Emhoff, husband of Vice President-elect Kamala Harris, will be leaving the Biglaw firm by Inauguration Day. Emhoff took a temporary leave of absence from the Biglaw firm in August.


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Law Firms Should Skip Attorney Reviews This Year

One of the perks about having my own practice is that I do not need to complete many of the purely administrative tasks that attorneys at numerous law firms need to perform. For instance, I do not typically need to log my business development or pro bono hours, I just complete the work, and it doesn’t normally matter if those hours are counted. In addition, my two-attorney law firm run by my brother and me does not have an attorney review process (although it would be interesting for the two of us to talk about our performance, maybe like an “airing of the grievances”!). Since it is almost the end of the year, many firms across the country are about to begin or are currently undergoing their annual attorney review process. I have already discussed in a prior article how attorney reviews are often a waste of time, and in this extraordinary year, such reviews may do more damage than good. For a variety of reasons, law firms should skip attorney reviews this year.

As many attorneys know from first-hand experience, attorney reviews can often be time consuming. Attorneys usually need to complete a questionnaire on their performance to kick off the review process, and this is often reviewed by managers, who must also write their own comments. People are extremely busy and distracted this year, for obvious reasons. Attorneys need to be flexible when managing childcare, overseeing schooling, and completing other tasks as many people work from home. Attorneys do not need to have one more, entirely administrative task to complete, and firms can give attorneys a huge morale boost if they are empathetic to their employees during this trying time.

Attorney reviews can also be extremely stressful on many lawyers. Lawyers often feel that they are being scrutinized during reviews, and if they do not justify how they deserve to stay at a firm, they may end up on the chopping block. This can lead them to spend an inordinate amount of time on completing self-evaluations and other steps related to the review process. Normally, attorneys do not need to feel too much stress related to the review process, since their jobs are typically secure unless they truly fall below expectations.

However, the economy is extremely unstable, and the unemployment rate is at its highest in recent memory due to the COVID-19 pandemic. Firms have cut salaries and conducted layoffs throughout the year in order to deal with economic conditions. Even if attorney jobs are secure (and some firms have publicly acknowledged as much), there is still a justifiable fear that the attorney review process may decide a lawyer’s fate at a firm, even if this is not the case. Firms can eliminate this fear altogether if they simply skip the attorney review process.

Moreover, it is unfair in many attorney reviews to hold associates responsible to the same expectations that would be normal for other times. For instance, many law firms have an established billable hour requirement, mandating that attorneys log a set number of hours over the course of a calendar year. However, numerous attorneys had difficulty meeting billable hour requirements this year due to issues caused by the pandemic. As I can somewhat attest to from personal experience, falling ill from COVID-19 can make it difficult to bill hours and fulfill other work responsibilities, especially if you have more serious health impacts from the virus. In addition, many attorneys were impacted by the loss of loved ones, and this could make it difficult to satisfy firm expectations. Moreover, the challenges of working from home, as well as juggling schooling and other responsibilities, can make it difficult to meet billable hours and other expectations. Firms should have compassion for their attorneys in this environment. Sparing them from justifying shortfalls in an attorney review may be the right thing to do.

Of course, firms often make decisions about raises and bonuses through the attorney review process, and firms may have a more difficult time evaluating associates without a review. However, firms can always adopt a lockstep model when determining raises and bonus, so that everyone that has satisfactorily performed during a year can earn a raise or a bonus. Indeed, many firms adopt a lockstep model for determining raises and bonuses under normal circumstances. As discussed in a prior article, paying attorneys uniformly on an objective basis also helps eliminate the possibility that attorneys are paid different salaries based on subjective or even objectionable grounds. Firms can always return to holistic determinations about salaries and bonuses when the pandemic subsides if they so choose.

All told, attorneys (and just about everyone else) have faced unprecedented challenges this year, and many people are feeling stressed as the year comes to a close. As a result, law firms should consider skipping their traditional attorney review process to eliminate a source of stress and be more equitable in this difficult time.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Bridging The Well-Being Gap From Law School To Lawyering

“Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to reenvisioning what it means to live the life of a lawyer.” – ABA National Task Force on Lawyer Well-Being

Attorney well-being has been in crisis for decades, even before a pandemic forced us to Google “Zoom fatigue” to understand the novel forms of exhaustion we experience daily. Happily, our profession finally is making a broader push to address well-being in a more comprehensive way, starting in law school and continuing through practice. Practising Law Institute (PLI) is proud to be part of that effort with our inaugural Professional Development Appreciation Month and additional new programs focused on attorney well-being.

Until recent years, attorney wellness often meant little more than practicing unimpaired. Informal efforts to address attorney substance use go as far back as the late 1960s, with the ABA beginning to call for what would later become state Lawyer Assistance Programs in the late 1980s. Today, there are bar dues-funded Lawyer Assistance Programs in all 50 states and D.C. It wasn’t until well into the 2000s, however, that bar associations, law firms and law schools also began to address well-being for the broader population of law students and lawyers facing life challenges other than substance use disorders.

This timeline matches my personal experience. In the late ‘90s and early 2000s, associate well-being in Big Law was measured almost exclusively by whether we billed our hours, produced good work, made our bonuses, and didn’t burn out and quit. Substance use and mental health issues were discussed only if they impacted the quality of our work, and those conversations came with a healthy dose of shame.

In other words, the reward system was frequently centered around whether you were meeting external, firm-centered goals rather than your own internal career and life goals. This conflict too often resulted in the worst of both worlds – neither attorney well-being nor long-term retention and development of highly competent practitioners.

Even when some firms formalized associate development, taking steps to track career milestones and create mentorship programs, those metrics and relationships were centered around helping associates get training in the technical aspects of lawyering appropriate to their seniority. It was too often luck of the draw whether you happened to work for a partner who cared about anything beyond whether she could trust you to take a deposition or create a deal checklist. Goals like a sustainable work-life balance and healthy stress management were wholly up to the individual to pursue – or, all too often, to simply ignore.

That approach is changing with more systematic efforts in recent years by law schools, bar associations and the Professional Development community to address well-being for all attorneys and law students. Efforts include “eliminating the stigma associated with help-seeking behaviors [and] emphasizing that well-being is an indispensable part of a lawyer’s duty of competence.” These efforts also recognize the unique challenges faced by lawyers who are members of communities impacted by systemic racism and other forms of discrimination.

The link between well-being and competence is particularly relevant to the transition from law school to practice. As a new attorney, it can be far too easy to get caught up in those firm-centered goals and metrics for success and neglect your own well-being, to the detriment of both your long-term career and personal life. As executive coach to lawyers (and former Big Law partner) Rudhir Krishtel says, “As lawyers, we will drop everything to service our clients. Do we do the same for ourselves? My advice: Put the oxygen mask on yourself before others. It could save your life – and it will definitely make you a happier and more successful lawyer.”

PLI’s mission is to keep attorneys at the forefront of legal knowledge and expertise. That will never change. But what is changing is the legal profession’s broader understanding of a well-trained lawyer: someone who can remain healthy and productive for the long term.

At PLI, we are working to fulfill this goal, as well. Our Bridge-the-Gap programs cover the ethics and skills CLE training that new attorneys need. New and upcoming programs focused on attorney well-being include the upcoming live webcast Taking Control of Your Well-Being: Mental Health and Wellness for Attorneys; the on-demand roundtable programs Mental Health and Wellness for Litigators and Addressing the Perceived Stigma – A Discussion About Attorney Mental Health; and our free webcast Empowering Professional Development Series 2020: Well-Being in the Legal Industry, recently launched for PD Appreciation Month. To learn more and register for these and other programs focused on attorney well-being, visit PLI.edu.


Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

No, World Leaders Calling Joe Biden Is Not ‘Exactly What Michael Flynn Did’

(Photo by Alex Wroblewski/Getty Images)

There are so many legally dubious concepts floating around social media these days that it’s easy for some to get lost in the shuffle. But while we’re mostly focused on wacky voter fraud theories spewing from landscaping parking lots, we shouldn’t lose sight of the higher-minded bad legal takes.

Like this one that many people are positing, including prominent “anti-anti-Trump” reporter Glenn Greenwald:

No, it’s not. Not even a little bit.

Joe Biden is taking congratulatory calls from world leaders where they make their pitches about what they hope to see when Biden assumes the office in January. In fact, what this is “exactly” like is when Trump took these congratulatory calls in 2016 after Hillary Clinton conceded. Note that no one suggested that Donald Trump did anything criminal in taking these calls. Well, there was the decision to take a congratulatory call from Taiwan jacking up the Sino-U.S. relationship and then spending a day trying to explain that it was a deliberate move instead of the obvious bungling of a foreign policy team convinced that they would make Mexico pay for a wall. And even that breach wasn’t considered criminal, just stupid.

In any event, what it is not “exactly” like — from a legal standpoint — is Michael Flynn, who was not part of the governing administration at the time, urging the Russian government to take specific foreign policy actions for the express purpose of undermining American foreign policy. Specifically, he told Russia not to respond to pending sanctions coming from the Obama administration. There’s an argument, of course, that this doesn’t cross the line and that he wasn’t countermanding current policy but only expressing possible future policy… but that is a very daring take on where the line exists. In any event, what Flynn then did was lie about it. And we know these things happened because Flynn admitted to them under oath… twice.

Greenwald doesn’t like the idea of charging someone with lying to the FBI as a standalone crime, and there are definitely arguments against it. It artificially tilts the balance of power more toward prosecutors who can pile on more charges for defendants refusing to roll over and confess. On the other hand, it IS the current state of the law and, as applied, an agent of the national security apparatus opts into being held to a higher standard than a kid trying to get out of a shoplifting charge. For this category of individual, being anything less than forthcoming to authorities is hard to justify. Flynn wasn’t a whistleblower, like the courageous people Greenwald has made a career of working with over the years. He was a guy lying to investigators for the simple sake of covering up stuff that he knew or should have known was improper.

Personally, I like Greenwald. I’ve always appreciated the work he’s done on the dangerous mainstreaming of the idea that a government spying on its own citizens is not only justified but preferred. Unfortunately, Greenwald is also the sort of idealistic voice that foreign intelligence services “hack” sometimes by pushing their good intentions to the limit. Greenwald’s skepticism of government institutions is so absolute that Biden getting a ring from Justin Trudeau about the election is transformed into “exactly” the same as Flynn to square his fervent belief that the security state has a preference for anti-Russia foreign policy and will pervert the law in pursuit of that goal.

But it’s not the same.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Am Law 50 Firm Offers Retroactive Pay For All, Plus Amazing Benefits For Lawyers Who Became Caretakers During Pandemic

(Image via Getty)

Today is a great day in the world of Biglaw. Not only are year-end bonuses out, but other top firms that instituted salary cuts during the height of the coronavirus crisis are now promising to make their employees whole by offering retroactive back pay, just in time for the holiday season.

If you recall, Orrick — a firm that brought in $1,158,537,000 in 2019 gross revenue, placing in at No. 31 in the most recent Am Law 100 rankings — rolled back all of its austerity measures as of October 1, restoring pay and full-time schedules for all of its employees prospectively. Now, the firm will be making everyone whole for the period of April through September 30. (If you recall, these “make whole” rewards were originally hours-based, for top contributors only.) This money will be reflected in everyone’s November 30 paychecks.

On top of these retroactive salary reimbursements, Orrick is offering a special program for lawyers who have also worked as family caretakers (for children, elderly parents, or both) during the pandemic. Through the end of the first quarter of 2021, the firm will allow associates and of counsel to work an 80 percent schedule at full compensation for up to three months. “We understand that this does not solve the problem,” said Mitch Zuklie, Orrick’s chairman and chief executive officer, “but we hope it provides some meaningful help, particularly as the coronavirus battle heads into a new phase across our country.” For working parents who are dealing with hybrid learning schedules at schools that have been opening and closing with the news of COVID positive cases on top of their billable hours, this is an incredibly welcome benefit. 

Last, but certainly not least, Orrick has committed to matching last year’s bonus scale — which is now this year’s bonus scale — and will “take into consideration this year’s circumstances and market developments” (i.e., the appreciation bonuses that were offered by many firms earlier this fall).

We’re sure that everyone at Orrick is thankful that the firm is taking their mental health seriously during these unprecedented times. For many, the stress of a smaller paycheck coupled with unexpected caretaking responsibilities has been quite overwhelming, but at least they’re taking steps to do something positive about it.

(Flip to the next page to see the full memo from Orrick.)

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

So, Donald Trump … Lock Him Up?

(Photo by Drew Angerer/Getty Images)

Those of us who actually love this country — in a much deeper sense than just wanting to slip on a pair of American flag Crocs and pretend we’re better than people overseas while remaining ignorant of the nation’s rich and complex history — had a hard time watching Donald Trump profane the ideals of the United States by baselessly calling for the imprisonment of his political rivals. He has been goading crowds into “Lock her up” chants aimed at Hillary Clinton for well over four years. Trump has targeted other female Democratic Party leaders with the chant too, including Senator Dianne Feinstein and Speaker Nancy Pelosi. More recently, Trump tried spicing the chant up a bit by changing it to “Lock him up” and aiming it at former President Barack Obama as well as at Joe Biden. What a wordsmith.

There was a little problem though. None of those people committed a crime (if you’re a QAnon hockey mom or whatever and have somehow gotten this far into the column already, don’t write me any emails, I’ll take my cues on who has and hasn’t committed a crime from prosecutors rather than from some random jerk with an internet connection and way too much time on her hands, thank you very much).

A warped Justice Department weaponized by Bill Barr to fight Trump’s political battles wasn’t enough to actually charge any of the targets of Trump’s chants based on completely nonexistent evidence. Even so, Trump said less than a month ago that he still “100 percent” agreed with the idea that Hillary Clinton should be jailed, and he implied that Barr’s legacy depended upon it. Boy, if he’s concerned about Barr’s legacy, I have some really bad news for him.

But that’s the least of Trump’s concerns, because unlike all of the people he made up lies about to further his political ambitions, it seems that Trump has committed multiple crimes, again and again, for decades. Uh, let’s start with sexual assault, which he famously bragged about committing while being recorded on a hot mic. At this point at least 26 women have publicly accused Donald Trump of sexual misconduct.

Sure, a lot of the sexual assault claims are too old to prosecute under the relevant statutes of limitations, and there are evidentiary hurdles in such cases in that no one typically witnesses a sexual assault but the victim and the perpetrator. So let’s just move right along into the state-level frauds.

Manhattan District Attorney Cyrus Vance has been criminally investigating Trump and the Trump Organization for more than two years. The probe was originally launched to look into the likely illegal hush money payments Trump made to two women before the 2016 election, but recent court filings suggest the investigation has broadened to include possible bank fraud, tax fraud, insurance fraud, and falsification of business records. While the full details of Vance’s investigation are not yet public, Vance does seem poised to obtain Trump’s tax records, which would likely further whatever type of case he is building.

At the federal level, many legal commentators have raised the possibility that Trump could face tax evasion charges in the wake of revelations that he only paid $750 in federal income taxes in 2016 and in 2017. Although Biden has been very reticent to say he would support federal criminal charges against his predecessor, he has also indicated that he would not interfere with the independent judgement of his Justice Department. A state level tax fraud investigation against Trump and the Trump Organization is already underway by New York’s Attorney General Letitia James, who deposed Eric Trump in October as part of that probe.

Then there’s sedition. 18 U.S. Code § 2384 is entitled “Seditious conspiracy,” and says:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States…they shall each be fined under this title or imprisoned not more than twenty years, or both.

The Biden administration is going to be heading the new government of the United States, and with no evidence whatsoever, Donald Trump, Kayleigh McEnany, Rudy Giuliani, and a host of other D-list goons have been continually crowing that the Biden administration is illegitimate, committed widespread voter fraud, and will be stealing the election. Nobody’s going to charge Trump with sedition. But like with everything, we’re grading him on a big curve. If I barricaded myself in the White House, claimed that I actually won the election even though I have no evidence to call into question the legitimate election result, got all my friends to go out and say that the voters legitimately elected me instead of Biden, and insisted that I wasn’t going anywhere, people would call that a coup. For some reason, Trump always gets a pass.

Maybe, though, this doesn’t need to get a whole lot deeper than the grand legal principle of “what’s good for the goose is good for the gander.” I don’t think Trump has the self-awareness to regret those “Lock her up” chants, or anything else, really. But if he does wind up behind bars, well, that will be quite a twist for those of us who do have the capacity to grasp irony.


Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Yesterday Was The Day America Learned What We’ve Known About Jones Day All Along

So, we uh, well, we really went after Jones Day yesterday. And I regret nothing. If you try to overturn the results of a free and fair election with courtroom machinations, well, you’re going to piss some people off.

But between the New York Times article blowing them up, and the Lincoln Project promising an ad campaign targeting not just the Biglaw firm over its election litigation, but their clients too, well, it couldn’t have been a good day to work in their PR office. And Above the Law tipsters from all around Biglaw were noticing the cracks in the firm’s armor.

Like folks taking note of their social media presence during the controversy:

FYI, just thought you should know Jones Day’s Twitter is getting filled with negative comments. Their LinkedIn posts was also getting filled with negative comments until Jones day deleted them all and disabled the comment function!

And quite a few people noted that the firm’s servers seemed unable to keep up with the sudden deluge of attention.

When their website was finally up and working, a link to a Jones Day Statement Regarding Election Litigation appeared. Oh, this’ll be good.

First off, Jones Day issued a strong, categorical rebuke of the negative coverage:

Jones Day is not representing President Trump, his campaign, or any affiliated party in any litigation alleging voter fraud. Jones Day also is not representing any entity in any litigation challenging or contesting the results of the 2020 general election. Media reports to the contrary are false.

Wow. Well, then let us be the first to express our apolo… oh wait, there’s more.

Jones Day is representing the Pennsylvania GOP in pending litigation brought by private parties in April 2020 and the Pennsylvania Democratic Party in August 2020. In that litigation, the Pennsylvania Supreme Court issued an order extending the statutory deadline to return mail-in ballots established by the Pennsylvania General Assembly.

There it is.

Jones Day isn’t representing anyone alleging “voter fraud”… Jones Day just represents the GOP in the case that forms the basis of all the allegations that this is a stolen election. It’s a distinction that seems trivial, but in reality is actually still trivial.

The Republican Party of Pennsylvania, through Jones Day, has sought review in the United States Supreme Court on the ground that the order is unconstitutional because it usurped the Pennsylvania General Assembly’s plenary authority to determine election procedures including the deadline for absentee ballots. The United States Supreme Court is currently deciding whether to grant certiorari. Four justices agreed with our client’s position, and voted to grant a stay, indicating that they believed there was a fair prospect of review and reversal by the Court. Three justices have issued a statement that there is “a strong likelihood that the Pennsylvania Supreme Court’s order violates the U.S. Constitution.” On November 6, Justice Alito ordered Pennsylvania election officials to segregate ballots arriving after the statutory deadline to preserve the issue and to have a record of the vote with and without the segregated ballots.

Basically, Jones Day is shouting to the world that they are not the kind of two-bit outfit that will get caught getting berated over hearsay within hearsay, as if the flack they’re taking from the Times article is for being bad lawyers as opposed to being evil lawyers. They’re taking flack because they are good lawyers trying to disenfranchise thousands of people in the middle of a pandemic.

Jones Day will not withdraw from that representation.

Everyone is entitled to hire the counsel of their choice. And we shouldn’t judge attorneys as attorneys based on the cases they take. However, lawyering is also a business, and part of business is protecting the brand. Jones Day saw a global pandemic that sparked serious public health concerns and thought it was good business to slap their name on forcing people to risk their lives to vote in person rather than voting absentee — a completely safe form of voting — simply because that could improve turnout and undermine the gerrymandered Pennsylvania state legislature that routinely brags about how its unconstitutional voting restrictions were created for the purpose of helping them retain power. Jones Day is welcome to take on that representation… and Jones Day should be prepared to face the associated market backlash for that move.

Or they could whine like children.

Jones Day expects that the media will correct the numerous false reports given the facts set forth above, all of which were readily verifiable in the public record.

I see we’re taking the latter path.


HeadshotheadshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 
Joe Patrice is a Senior Editor at Above the Law and co-host of Thinking Like A Lawyer. Joe also serves as a Managing Director at RPN Executive Search. Feel free to email Joe or Kathryn  any tips, questions, or comments.

Welcome To Four Seasons Legal Podcast

It took awhile to declare a winner in the election, and it looks like it’s going to take even longer to declare an end to the election. And that’s nobody’s fault but the lawyers willing to make dubious claims from parking lot rallies and within the bowels of bureaucracy. Joe and Kathryn run down the quasi-lawyering phase of this election season.

Supreme Court justices seem unlikely to axe the ACA – MedCity News

Justice Amy Coney Barrett’s sudden confirmation last month raised a potential quandary: What if the ACA was overturned, upending coverage for millions in the middle of a pandemic?

Even with a 6-3 conservative majority, that outcome seems unlikely. In oral arguments on Tuesday, most of the court seemed hesitant to strike down the entire law.  Notably, Chief Justice John Roberts and Justice Brett Kavanaugh questioned whether the individual mandate was so crucial to the rest of the healthcare law after all.

In 2017, Congress reduced the penalty for not getting health insurance to $0.  Because of that, challengers in the case, Texas v California, argued that it could no longer be considered a tax, making the mandate unconstitutional.

They also tried to argue that the individual mandate could not be separated from the rest of the ACA, posing a threat to the healthcare law’s many other provisions if the mandate was overturned. But five justices questioned that line of reasoning, including Roberts and Kavanaugh, a Trump appointee.

“I tend to agree with you that this is a very straightforward case for severability under our precedence,” Kavanaugh told Donald Verilli, a former Obama Administration solicitor general who is defending the ACA for the House of Representatives.

“I think it’s hard for you to argue that Congress intended for the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act,” Roberts told Texas Solicitor General Kyle Hawkins on Tuesday. “I think frankly that they wanted the court to do that but that’s not our job.”

Based on her line of questioning, it was less clear Trump’s most recent appointee, Barrett, will fall.

Troy Oechsner, a partner with Manatt, cautioned that oral arguments might not always be indicative of justices’ final decisions. But at least five of the nine seemed to be skeptical of the severability argument.

“You could see a majority of the court saying ‘because the mandate was zeroed out, and there’s no longer any penalty to it, it’s effectively not a tax. We’re going to throw it out. … But losing the individual mandate is not critical to the operation of the rest of the law,’” he said.

In total, the Supreme Court must consider three questions:

  • Do Texas and the 17 other attorney generals and governors challenging the law have standing for their case?
  • Is the individual mandate, the portion of the ACA that requires Americans to have health insurance, constitutional with a $0 penalty?
  • Is the individual mandate inseverable from the rest of the ACA, meaning it cannot be separated from the rest of the law? In this case, if the mandate is determined to be unconstitutional, other provisions of the ACA could be struck down, too.

A significant portion of time was also spent questioning whether the challengers had the standing to bring the case in the first place — whether the states and individual plaintiffs could establish that a $0 individual mandate had caused them any harm. If found to have no standing, the case could be thrown out entirely.

“I don’t think I would say it’s the most likely outcome, but it’s not inconceivable,” Oechsner said. “It might be a way for at least the majority of justices to sidestep all of the thorny issues about whether the individual mandate is still constitutional.”

If the law goes

The worst-case scenario would be for the court to strike down the entire ACA, eliminating not just the individual mandate, but all of the insurance protections that are included in the law. That would remove protections that say insurers can’t deny coverage to patients with pre-existing conditions, and community rating requirements that stipulate that sick people can’t get charged more for coverage, as well as removing limitations on annual and lifetime benefits.

Millions of people would also lose Medicaid coverage in states that had expanded Medicaid. The program has also served as an important lifeline during the pandemic for people who lost their jobs and employer-based insurance. Between February and August, Medicaid enrollment increased by a median of 8.3%, well above pre-pandemic levels, according to an analysis of data from 24 states conducted by Manatt.

If the law stays

If the ACA — or at least most of the law — remains intact, it would serve as the foundation for President-elect Joe Biden’s healthcare policy. So far, the campaign has outlined three key measures, including increasing subsidies for individual buying coverage through the exchanges, lowering the age for Medicare eligibility to 60, and the most ambitious of its policy goals, creating a public insurance option that could compete with commercial insurance plans.

“Assuming the ACA is upheld and the administration isn’t scrambling to fix that, I expect them to pursue that platform,” Oechsner said. “Whether they’ll be able to do that, if the Senate remains Republican, is unknown.”

Photo credit: Matt Wade, Flickr 

Bill Ackman Is Here To Help Trump See The Light, Save America