Lyle Denniston reports that the audio from the oral argument in the Fourth Circuit’s individual mandate litigation will be posted at 2pm. We don’t know the panel yet, so that will be part of the mystery. For my money, the two most interesting things to listen for will be 1) How much time will be spent on the merits, as compared to the standing and other procedural issues, and 2) The judges’ views, to the extent we can tell from the argument, on what the proper test is for when a law is “necessary and proper” for carrying out an enumerated power. Stay tuned, as always.
UPDATE: I just read DOJ’s main merits brief in the Fourth Circuit litigation, and it strikes me as much stronger than its briefing in the district courts. DOJ’s briefing in the district courts seemed rather puzzling at times; it seemed to me that DOJ was emphasizing some arguments that were weak while deemphasizing arguments that were strong. The briefing in the court of appeals seems significantly stronger.