Avik’s criticism is puzzling, to be kind. He laments that Paul Clement and Mike Carvin — both superb appellate advocates on the briefs and on their feet; Paul, quite frankly, is the best I have ever seen and Mike is world-class as well — should have spent more time hammering home policy arguments, but this was not a legislative hearing. When Mike did hint at some issue that might have been construed as a policy point, he was chastised by Judge Hull, who told him that an appellate court is not the place for policy arguments. And to the extent it was relevant to the legal issues before the court, the EMTALA point that Avik mentions was discussed thoroughly in the briefs submitted by the States and the private plaintiffs (and their amicus curiae) that the judges had already read. So the focus of the argument was properly on the constitutional and statutory issues before the court.
It is notoriously difficult, and usually impossible, to predict the result of a case by the questions asked at oral argument. Judges often ask “devil’s advocate” questions of the side that they are favoring in order to test the outer limits of their own conception of the law. The health-care cases remain very difficult to call. The outer boundaries of Congress’s power under both the Commerce Clause and the Necessary and Proper Clause are murky legal issues, testing highly capable lawyers on both sides of the aisle. If the law is sustained, it will certainly not be because of poor advocacy on the challenger’s part. The briefing in the case was superb, and while I wasn’t there to see the oral argument, I have little doubt that Paul and Mike were true to their equally superb form.