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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 

Perhaps the most enervating aspect of the Trump era has been the endless feed of endlessly credulous reports that this president most invulnerable to change had managed to do so and escape his impossibly base instincts, had finally grown up, become “presidential” or whatever, had turned the corner on the pettiness and name-calling and temper-tantrums and serial unseriousness to conform to a set of behaviors more befitting of his high office, only to be disabused of the notion within minutes or hours—never any longer when Twitter was open on the commander-in-chief’s phone and Fox News was goading him to resume his petulance at the earliest possible opportunity.

Bonus season has officially arrived — and it’s here SUPER early!

It’s actually a bit shocking that Biglaw bonus season is here so soon. This is actually the third earliest time that Biglaw bonuses have been announced since 2006. But what comes as an even bigger shocker is the fact that Cravath was not the firm to make the first move on year-end bonuses.

Which firm is kicking off bonus season early this year?

This is a nice little Veterans Day gift from … Baker McKenzie. Wow! Even though Baker is the fourth highest-grossing firm in the country with $2.92 billion in revenue in 2019, this is very unexpected behavior. The global firm shocked its associates this morning by announcing this year’s bonuses for its U.S. associates.

So, let’s get into the details. What do the bonuses look like this year?

Class	Bonus
2019	$15,000
2018	$25,000
2017	$50,000
2016	$65,000
2015	$80,000
2014	$90,000
2013	$100,000
2012 and more senior	$100,000

This is the same exact bonus scale that’s been making the Biglaw rounds for years (just as 80 percent of our readers predicted it would be). But who can really complain about getting this much cash during a pandemic? We’ll get to that later.

When announcing its bonus scale, Baker McKenzie not only promised to match any increases in the market should they occur, but the firm also noted that its salary reductions (which took effect on May 1) would end on November 30, 2020, one month earlier than previously planned. On top of all of that good news, the firm will additionally reward top performers during the coronavirus crisis whose practices were impacted by the economic downturn, plus others who “demonstrat[ed] exemplary performance.” We don’t know what those additional monetary rewards look like yet.

(It should be noted, however, that Baker McKenzie did not hand out appreciation bonuses to its associates earlier this fall, and has not committed to offering them at this time, either. Davis Polk set the standard on those bonuses, which ranged from $7,500 to $40,000. That said, Baker McKenzie is technically already offering below-market bonuses. Given that the market increased before the firm even announced its year-end bonuses, will it still make the match? This is a firm that recently conducted attorney layoffs, after all, so suppose we’ll have to wait and see. As we mentioned just yesterday, this year, there will be different tiers set for compensation if not all firms offer additional bonus dollars to their associates on top of their standard bonuses to truly match the market. We just didn’t think it would happen this soon.)

When announcing this year’s bonuses, Colin Murray, Baker McKenzie’s North America Chief Executive Officer, said, “The firm would like to express our sincere appreciation for our associates’ hard work on behalf of clients and also for navigating the many personal and professional challenges brought on by COVID-19.”

Congratulations to everyone at the firm, and congratulations to all other associates who may be receiving bonus news sooner than expected this year.

(Flip to the next page to read the full memo.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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Staci 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.

* The former CEO of McDonald’s is asking to be dismissed from a discrimination lawsuit filed by two former executives. Sounds like he could use a Happy Meal… [Restaurant Business]

* A Connecticut lawyer has been sentenced to prison for allegedly fleecing donors of a veterans’ charity. [Hartford Courant]

* Sources suggest that Senator Amy Klobuchar is being considered as a potential Attorney General in the Biden Administration. [CNBC]

* The first woman has been elected to become the new Maricopa County Attorney, leading the third-largest prosecutorial agency in the country. [Arizona Republic]

* The Los Angeles Times and Tribune Publishing have settled a longstanding pay disparity lawsuit. It must be interesting for the Times to write an article about itself… [Los Angeles Times]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Leopard Data Solutions, what percentage of partners at the Top 200 firms are not ethnically or gender diverse — otherwise known as white men?

Hint: Though white men only account for 41 percent of associates at these firms, they’re far better represented in the partnership ranks.

See the answer on the next page.

Epitaphs for Masa Son’s audacity have been written time and again. We ourselves have been guilty of it. After years of disaster after billion-dollar disaster, it really did seem as though the SoftBank chief had essentially given up, with his move into that last refuge of financial scoundrels, the special purpose acquisition company.

Rarely if ever have we been happier to report that we were wrong. You guys, Masa Son is back.

The conglomerate logged a profit of more than $6 billion in the July-September quarter, driven by rising share prices and valuations for some of its portfolio companies…. “We can go on the attack at the same time as we keep strengthening our defenses,” Mr. Son said at a news conference in Tokyo, the first in six months where he spoke to reporters in person.

Oh boy! There’s already a bunch of shit being piled on Jones Day for their role in enabling the legal fantasies of Donald Trump and pretending that the Supreme Court will deliver the election to Trump. And, rightly so. Not the first (or last) time Above the Law has called out the Biglaw giant, but in the grand media pond, we are relatively niche fish — we’re a bunch of former lawyers writing to an audience of practicing lawyers, after all — and it’s been great to see mainstream sources dunking on Jones Day.

And it’s about to get so much worse.

I’ve had my issues with the GOP never-Trumpers turned political action committee, the Lincoln Project, and I stand by the position that liberals should be wary of any “help” from them. But. But, well, this is going to be fun. Today, Greg Sargent at the Washington Post reports that the PAC is launching an ad campaign attacking Jones Day.

Televised anti-Jones Day ads? You know Above the Law is here for that.

The Lincoln Project has said that they will continue to advocate for expanded voting rights and anti-voter suppression laws even in a post-Trump world. And as Sargent notes, this is part of that effort:

“These people have now decided that attempting to undermine the outcome of a just and fair election is perfectly acceptable for their legal practices,” Rick Wilson, GOP strategist and co-founder of the Lincoln Project told me, in a reference to Jones Day and other firms representing Trump and the GOP.

Wilson said the Lincoln Project will “bring a light on that,” noting that such efforts  help Trump in “waging law fare against the American people.”

Oh, and it gets better: there’re also going after Jones Day’s clients. As Wilson says, “I’d like to know how General Motors justifies working with a company that’s aggressively seeking to undermine the validity of a free and fair election.”

As I said, this is going to get fun.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Whoa, whoa, whoa. I just think we have to be very clear: She’s charging the other side as welcoming fraud and illegal voting. Unless she has more details to back that up, I can’t in good countenance continue to showing you this. Maybe they do have something else to back that up, but that’s an explosive charge to make, that the other side is effectively rigging and cheating. … Not so fast.

— Fox News anchor Neil Cavuto, as he cut away from a press briefing featuring White House press secretary Kayleigh McEnany, who is also a Trump campaign spokesperson (and a former Above the Law columnnist), as she echoed the president’s unsubstantiated claims, without evidence, that Democrats encouraged voter fraud in the 2020 election.

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Staci 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.

There were basically three tiers of panic about Amy Coney Barrett’s disgracefully abrupt ascension to the Supreme Court. One tier feared that this was all an effort to guarantee Donald Trump could maintain the White House by judicial fiat. This is likely how it was sold to Trump himself, who might have squandered his only chance of staying in office by falling for this ruse. Others dismissed this — the conservatives had a majority as is — and instead focused on the jurist’s explicit animosity toward reproductive freedom and the Republican desire to get the full transition to Gilead locked in before a possible shift in the Senate. Meanwhile, the third tier, and the one that largely drove the official Democratic response to the nomination, worried that the rapid elevation was all about getting some, pun intended, insurance on the upcoming Affordable Care Act challenge.

It turns out that last argument was probably bunk. It’s often folly to rely on oral arguments for divining the eventual opinion, but this morning’s oral argument on the Obamacare challenge seemed to signal a solid majority unwilling to follow the Republican argument. And the theme that resonated from Chief Justice Roberts — and from Brett Kavanaugh, who followed the Chief’s lead — is that severing the individual mandate provision and allowing the rest of the law to stand is the proper solution.

But why it was a bunk concern offers a telling and tragic story about the state of the United States Supreme Court and the profound absence of any sense of legal consistency among its avowed conservatives. At the end of the day, the judicial philosophy of these justices is about the short-term best interests of the Republican Party. Period, full stop.

To be sure, this was a crisis entirely of Chief Justice Roberts’s own making. Had he upheld the ACA as a constitutional exercise of the interstate commerce clause — like everyone knew it was — then this case wouldn’t be here. But his original opinion was one of those “landmine decisions” where the result was less important than the majority’s showing of its work. Roberts upheld the ACA, not as a commerce clause case, but as a “tax.” This technical shift was lost on most straightforward political observers excited by the outcome, but it allowed Roberts to lay the groundwork for future efforts to undermine the commerce clause, the basis of everything from civil rights to environmental regulation. It also meant that when Congress later zeroed out the tax portion of the bill, Republican lawyers saw a chance to dump the whole thing. Ah, the best laid totally disingenuous plans….

So the crux of this case is “can the law survive by just severing the part where they now have a zero dollar tax or must the whole thing be tossed on the grounds that the mandate was central to the whole reasoning behind the law?”

Chief Justice Roberts made it clear that it could just be cut. “Congress left the rest of the law intact when it lowered the penalty to zero.” In other words, Congress signaled that their intention was to keep the ACA when it had an opportunity to kill it. This was most likely done because they had absolutely zero alternative and had noticed that the ACA had grown in popularity enough that Republicans were now campaigning on pledges to maintain guarantees of coverage for those with pre-existing conditions.

But this is the rub. In Shelby County, John Roberts struck down the primary tool of the Voting Rights Act and declared racism solved. In Justice Ginsburg’s dissent, she pointed out that severability was expressly written into the Voting Rights Act, and that, at worst, the majority could determine that Shelby County, Alabama no longer met the constitutional requirements for the edicts of the Act, but could not let that turn into a facial demolition of the whole legal regime.

And yet Roberts did just that.

A key practical element of the Shelby County severability argument was the fact that Congress had just overwhelmingly and on a bi-partisan basis renewed both the pre-clearance provision of the law and the list of jurisdictions requiring DOJ clearance. It was pretty clear evidence that they did not intend any individual challenge to overturn the Act as a whole. But today, when it’s convenient to John Roberts, recent congressional affirmation is ironclad proof of severability.

Certainly there are high-minded academic pretzels that can be made of how this is all somehow consistent — providing this sort of vapid cover is why the Federalist Society exists — but reduced to brass tacks (or “tax” for the sake of this opinion), John Roberts just said “look, Congress had a chance to strike it all down and didn’t proving they intended the law to survive as a whole” despite ignoring the very same logic when it came to aggressively disenfranchising Black voters.

There is no animating judicial philosophy beyond the political expediency of the Republican Party. And if polls didn’t overwhelmingly show that Republicans would get gutted in their Middle America strongholds if they allowed pre-existing condition guarantees to die, you can bet Roberts and Kavanaugh would have spent today quipping from the bench about the abiding necessity of recognizing this law as fundamentally unenforceable without an individual mandate.

But this is what they were put there to do.

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Joe 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.