U.S. Supreme Court Oral Argument: Health Care Law / HealthChoice

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>> WE WILL HEAR AN ARGUMENT IN CASE 19 840, CALIFORNIA V. TEXAS AND THE CONSOLIDATED CASE. GENERAL MONAGHAN. >> MR. CHIEF JUSTICE, AND NFIB THIS COURT CONSTRUED SECTION 5000 DAY OF THE AFFORDABLE CARE ACT TO CREATE A CHOICE, EVEN -- EITHER ADJUST OR PAY THE TAX. IN 2017, CONGRESS DID NOT CHANGE SUB A OR B, IT JUST REDUCE THE AMOUNT OF THE TAX -- OF TAX TO ZERO.

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THIS STILL PROTECTS -- PRESENTS A CHOICE, BUY INSURANCE AND DO NOTHING. THAT DOES NOT HARM ANYONE OR VIOLATE THE CONSTITUTION. RESPONDENTS INSIST THAT THE 20 17TH AMENDMENT TO TEAR DOWN THE ENTIRE ACA THAT RESTS ON TWO UNTENABLE ARGUMENTS, FIRST RESPONDENTS CONTEND THAT CONGRESS TRANSFORMED IT INTO A COMMAND WHEN IT ZEROED OUT THE TAX. THAT IS CONTRARY TO THIS CONSTRUCTION OF THE SAME TAX, IT IS AT ODDS AT HOW CONGRESS AND THE PRESIDENT UNDERSTOOD THE

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AMENDMENTS, AND IT WOULD ATTRIBUTE TO CONGRESS AND INTENDS TO DO EXACTLY WHAT THIS COURT SAID WOULD BE UNCONSTITUTIONAL. SECONDS, -- SECOND, RESPONDENTS ARGUED THAT IF THIS IS UNCONSTITUTIONAL, EVERY OTHER PROVISION MUST ALSO FALL. THE STARTING PART OF ANY REMEDIAL ANALYSIS WOULD BE THE PRESUMPTION IN FAVOR OF SEVERABILITY, AND HERE THE TEXT AND STATUTORY STRUCTURE CONFIRM THAT PRESUMPTION. AFTER A YEAR OF DEBATE, AFTER THE FUTURE OF THE ACA, CONGRESS MADE A SINGLE SURGICAL CHANGE. IT MADE 5000 DAY BY ELIMINATING

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THE ONLY LEGAL CONSEQUENCE FOR NOT BUYING INSURANCE AND IT KEPT EVERY OTHER PROVISION IN PLACE. WE KNOW THE REST OF THE ACT SHOULD REMAIN IN PLACE IF THOUGHT -- IF 5000 DAY IS UNENFORCEABLE BECAUSE THAT IS THE FRAMEWORK CONGRESS ITSELF HAS ALREADY CREATED. MR. CHIEF JUSTICE, I WELCOME THE QUESTIONS. JUSTICE ROBERTS: I WOULD LIKE TO BEGIN WITH THE STANDING ISSUES. AS SOMEONE WHO DOES NOT FOLLOW THE MANDATE AND PURCHASE INSURANCE VIOLATING THE LAW? MR. MONGAN: NOT ON OUR VIEW, WE THINK THAT THIS IS AN

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INOPERATIVE PROVISION AND THERE IS NO LEGAL COMMAND. EVEN IF THE COURT WERE TO ACCEPT THE PLAINTIFF'S THEORY THAT IT IS A COMMAND AT THE STANDING STAGE, THEY STILL CANNOT ESTABLISH STANDING BECAUSE THERE IS NO THREAT OR EVEN POSSIBILITY THAT THAT COMMAND WOULD BE ENFORCED AGAINST THEM. CHIEF JUSTICE ROBERTS: IF SOMEONE WHO DOES NOT PURCHASE INSURANCE PURSUANT TO THE MANDATE APPLIES FOR A JOB DOWN THE ROAD AND IS ASKED TO FILL OUT A QUESTIONNAIRE ASKING WHETHER YOU HAVE EVER VIOLATED A LAW, WHICH BOX WHEN HE CHECKED, YES OR NO?

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MR. MONGAN: THEIR VIEW THAT THIS IS A COMMAND, THEY WOULD HAVE TO SAY THAT THEY VIOLATED THE LAW. IF THEY HAD ALLEGED THAT THEY WERE APPLYING FOR SUCH A JOB THAT THE EMPLOYER WAS GOING TO USE SUCH A WARM, THAT MIGHT BE A VIABLE THEORY OF STANDING. THERE IS NO ALLEGATION OF THAT BEFORE US HERE TODAY. CHIEF JUSTICE ROBERTS: LET US SAY CONGRESS PASSES A LAW SAYING THAT EVERYONE HAS TO MOW THEIR LAWN ONCE A WEEK AND MAKE A LOT OF FINDINGS ABOUT WHY THAT IS A GOOD THING. IT MAKES THE COUNTRY LOOK NEATER, YOU GET FRESH AIR IF YOU

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HAVE TO DO THAT, SUPPORTS THE LAWNMOWER BUSINESS, BUT THE FINE FOR VIOLATING IT IS ZERO DOLLARS. DO THEY HAVE STANDING? THE NEIGHBORS WILL SEE THAT THEY ARE NOT OBEYING THE LAW, THE OBJECTIVES OF CONGRESS WILL NOT BE FULFILLED, IN OTHER WORDS THEY WILL -- THERE WILL BE INJURY TO THAT PERSON, AND I WONDER WHY -- I WONDER IF UNDER YOUR THEORY THAT THE PERSON WOULD NOT BE ABLE TO CHALLENGE THE LAW? MR. MONGAN: I DO NOT THINK THEY

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WOULD BE ON THE THEORY THAT THEY HAVE ALTERED THEIR CONDUCT TO COMPLY WITH THE LAW AND THEY HAVE SUFFERED SOME INJURY. I THINK THAT FOLLOWS FROM THIS COURT'S CASE IN POE, HOLDER, AND AMERICAN BOOKSELLERS THAT IT IS NOT ENOUGH TO SAY I AM INJURED BY COMPLYING WITH THE LAW, YOU HAVE TO SHOW THREAT OF ENFORCEMENT. HERE OF COURSE CONGRESS ELIMINATED THE ONLY ENFORCEMENT MECHANISM IN 5000 DAY. JUSTICE THOMAS: THANK YOU. IF PUTTING THE CHIEF JUSTICE'S

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QUESTION IN TODAY'S TERMS, I ASSUME THAT IN MOST PLACES THERE IS NO PENALTY FOR WEARING A FACE MASK, OR A MASK DURING COVID. BUT, THERE IS SOME DEGREE OF OPPROBRIUM IF SOMEONE DOES NOT WEAR IT IN CERTAIN SETTINGS. WHAT IF SOMEONE VIOLATES THAT COMMAND IN SIMILAR TERMS TO THE MANDATE HERE, BUT NO PENALTY, WHAT THEY HAVE STANDING TO CHALLENGE THE MANDATE TO WEAR A MASK? MR. MONGAN: YOUR HONOR, I THINK

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UNDER THIS COURT'S CASES, THE QUESTION COMES DOWN TO WHETHER IT THERE IS A REAL THREAT OF ENFORCEMENT. IF IT IS JUST A COMMAND, I DO NOT THINK -- SEE HOW THAT WOULD BE CONSISTENT WITH CASES LIKE COHEN HOLDER OF LOOKED NOT JUST TO THE QUESTION OF WHETHER IT IS A COMMAND, BUT WHETHER THERE IS A THREAT OR POSSIBILITY OF ENFORCEMENT. JUSTICE THOMAS: IS THAT CONSISTENT WITH OUR FIRST AMENDMENT JURISPRUDENCE WHERE WITHOUT A PENALTY YOU CAN HAVE A CHILLING EFFECT? MR. MONGAN: I THINK THAT THERE

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MIGHT BE OTHER LEGAL THEORIES OF INJURY BEHIND -- BEYOND THE TYPE ARTICULATED WHAT -- BY THE PLAINTIFF HERE, WHICH IS STRICTLY FOCUSED ON I AM COMPLYING WITH THE COMMAND IN THE WAY THAT HARMS ME. IN THIS CASE WE ARE NOT IN THE FIRST AMENDMENT REALM, BUT THE STATE SUGGESTED THAT THERE MIGHT BE SOME THEORY OF HARM FROM THE EFFECTS OF THIRD-PARTY CONDUCT THAT MIGHT HAVE BEEN A VIABLE THEORY, BUT THE PROBLEM IS THAT THEY HAVE NOT ESTABLISHED WITH EVIDENCE REQUIRED ON SUMMARY JUDGMENT THAT THE AMENDED 5000 A, WHICH IS ENTIRELY TOOTHLESS, DOES INFLICT HARM ON THEM.

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JUSTICE THOMAS: THE PARTIES, THE RESPONDENTS, THEY ARE ARGUING AS WE HAD IN THE FIRST ACA CASE, THEY ARE ARGUING THAT THIS MANDATE IN COMBINATION WITH THE OTHER PROVISIONS REALLY CAUSED THEIR INJURIES. WHAT IS CURIOUS HERE IS WE HAVE BECOME ACCUSTOMED TO DECIDING THIS AT THE STANDING STAGE, AND THIS LOOKS SOMEWHAT LIKE A STATUTORY -- THIS SEVERABILITY

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ISSUE LOOKS LIKE A STATUTORY CONSTRUCTION MATTER. COULD YOU EXPLAIN TO ME WHY WE WOULD DETERMINE SEVERABILITY AT THE STANDING STAGE? MR. MONGAN: WELL, YOUR HONOR, I DO NOT KNOW THAT THE COURT NORMALLY DOES DETERMINE SEVERABILITY AT THE STANDING STAGE. I SUPPOSE IT COULD DO THAT AT THE PROCESS OF EVALUATING THE FEDERAL GOVERNMENT'S THEORY OF STANDING BY SEVERABILITY. DO NOT INC. THAT IS A THEORY THAT HAS BEEN ENDORSED BY THE COURT AND IT WILL CREATE TENSION WITH THIS COURT'S ARTICLE THREE PRESIDENT, BUT TYPICALLY SEVERABILITY WOULD BE ANALYZED

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AFTER A RULING ON THE LEGALITY OF THE PROVISION. JUSTICE THOMAS: I SEE MY TIME IS UP. THANK YOU. >> JUSTICE BREYER. JUSTICE BREYER: HOW DO YOU RESPOND TO THE UNITED STATES' THEORY OF STANDING? MR. MONGAN: IT IS A NOVEL THEORY AND HAS NEVER BEEN ENDORSED BY THIS COURT. IT WOULD CREATE AN -- IN A MASSIVE LOOPHOLE IN ARTICLE

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THREE. IN THE ACA, ANY AMERICAN IS REGULATED IN ANY PROVISION OF THE ACA AND THEY WOULD BE ABLE TO CHALLENGE 5000 A WITHOUT SHOWING THAT PROVISION HARMED THEM. I THINK IT IS IN TENSION WITH THE ARTICLE THREE PROSPECT IN SEVERAL RESPECTS. THE COURT HAS INDICATED IN CASES LIKE DAIMLER AND CHRYSLER IS THAT A PLAINTIFF NEEDS TO ESTABLISH STANDING FOR EACH CLAIM AND SHOW THAT THEY ARE INJURED BY THE ALLEGEDLY UNLAWFUL CONDUCT OR PROVISION. HERE WE HOW ARE -- WE ARE

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ALLOWING PLAINTIFFS TO PROCEED WITHOUT DOING THAT. SECOND, I THINK IT WOULD CREATE A REAL CONCERN ABOUT ADVISORY OPINIONS, BECAUSE I UNDER -- AS I UNDERSTAND THE THEORY, YOU WOULD HAVE TO ACCEPT THAT THE PROVISION IS INSEPARABLE AND PROCEED TO ADJUDICATE REALITY AND THEN YOU WOULD GET TO SEVERABILITY AND THEN WE WOULD KNOW THAT MOST PROVISIONS ARE SEVERABLE WHICH WOULD LEAD TO THE POSITION WHERE COURTS ARE ADJUDICATING THE LEGALITY OF DECISIONS THAT DO NOT HARM THE PLAINTIFFS.

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CHIEF CALL -- CHIEF JUSTICE ROBERTS: JUSTICE ALITO? JUSTICE ALITO: THE AFFORDABLE CARE ACT IS REQUIRED TO CALCULATE MEDICAID ELIGIBILITY BY ADJUSTED GROSS -- ADJUSTED INCOME. THIS HAS INCREASED THE NUMBER OF PEOPLE ON MEDICAID IN TEXAS. WHY CANT TEXAS CK DECLARED COY JUDGMENT THAT IT IS NOT -- SEEK A DECLARATORY JUDGMENT THAT IT

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IS NOT ALLOWED TO SEEK REPAYMENT THROUGH THAT METHOD. MR. MONGAN: THEY NEED TO SHOW THAT THEY ARE INJURED BY THE PROVISION. THAT IS SEPARATE FROM 5000 DAY AND IT WOULD REMAIN ON THE BOOKS EVEN IF 5000 DAY WERE RIPE -- WIPED AWAY. EVEN IF THE COURT -- ONLY IF THE COURT IS WILLING TO ACCEPT THAT IT IS A NOVEL THEORY, I DO NOT THINK THAT ITS THEORIES CAN ESTABLISH A CASE FOR CONTROVERSY WITH RESPECT TO THIS CLAIM CHALLENGING AMENDED 5000 DAY.

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-- 5000 A. JUSTICE ALITO: THERE IS LOGIC, SO WHY IS IT CONCEPTUALLY UNSOUND? MR. MONGAN: WE THINK IT IS UNSOUND BECAUSE IT WOULD ALLOW THE COURT AND ALLOW A PARTY TO COME INTO COURT AND CHALLENGE ANY ASPECT OF A LARGE STATUTORY SCHEME BY ASSERTING A THEORY THAT IT IS INSEPARABLE FROM ONE PROVISION THAT HARMS THEM. YOUR HONOR, IF THE COURT WANTED TO CREATE THAT TYPE OF RULE,

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THAT WOULD JUST BRING US TO THE MERITS, AND THE PROBLEM WITH THE MERITS THEORY IS THAT THE POINT -- THE PLAINTIFFS ARE POSITING THAT CONGRESS CREATED THE VERY COMMAND THAT THIS COURT HELD WAS CONSTITUTIONALLY IMPERMISSIBLE, AND THAT IS NOT A PLAUSIBLE CONSTRUCTION WHEN YOU CONSIDER THAT CONGRESS WAS WELL AWARE OF THIS COURT'S STATUTORY CONSTRUCTION AND RELIED ON THAT CHOICE, AND USED IT TO RENDER THE PROVISION INOPERATIVE. JUSTICE ALITO: IF TEXAS WERE TO

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FAIL TO USE THAT METHOD, WHAT CONSEQUENCES WOULD FOLLOW? MR. MONGAN: IF TEXAS WAS TO FAIL TO USE THE METHOD FOR CALCULATING MILLAGE -- MEDICAID ELIGIBILITY? I DO NOT KNOW, I SUPPOSE IT IS POSSIBLE BUT -- THAT THE FEDERAL GOVERNMENT COULD BRING SOME KIND OF ENFORCEMENT PROCEEDING AGAINST THEM OR AN INDIVIDUAL COULD SUE ON THE THEORY THAT THEY ARE ELIGIBLE FOR MEDICAID. JUSTICE ALITO: I WOULD ASK A RELATED QUESTION ABOUT WHAT IT WOULD HAPPEN IF THE IRS TO SET -- ATTEMPTED TO PUT PENALTIES ON

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STATE EMPLOYERS FOR FAILING TO REPOT -- -- COMPLY WITH REPORTING FAILURES. IN A COLLECTION PROCEEDING, COULD THE STATE ARGUED THAT IT HAS NO OBLIGATION TO FOLLOW THAT , BECAUSE THEY CANNOT BE SEVERED FROM THE INDIVIDUAL MANDATE? MR. MONGAN: THOSE ARE SEPARATE DIVISION -- SEPARATE. BUT THAT DOES NOT MEAN AS A PLAINTIFF THAT THEY CAN GO INTO COURT AND ESTABLISH AN ARTICLE THREE INJURY TIED TO 5000 A, THAT IS SUFFICIENT TO EXERCISE

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THE COURT'S JURISDICTION. CHIEF JUSTICE ROBERTS: JUSTICE SOTOMAYOR? JUSTICE SOTOMAYOR: IF THEY HAVE FULLY -- CHALLENGING THE PROVISION, THEY SHOULD HAVE BROUGHT THAT CHALLENGE, NOT A CHALLENGE BASED ON THE INDIVIDUAL MANDATE, CORRECT? MR. MONGAN: THAT IS EXACTLY RIGHT. AND ALTHOUGH THEY HAVE DISCUSSED A LOT OF THE COSTS THAT FLOW FROM OTHER PROVISIONS OF THE ACA, THEY HAVE NOT CHALLENGED THOSE PROVISIONS AND HAVE NOT

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ADVANCED ANY THEORY TO WHY THOSE ARE UNCONSTITUTIONAL. JUSTICE SOTO BOILER -- SOTOMAYOR: GIVE ME YOUR BEST ARGUMENT ABOUT WHY IT WOULD BE UNREASONABLE OR NOT LEGALLY ENFORCEABLE FOR PLAINTIFFS TO READ THE INDIVIDUAL MANDATE AS A LEGAL COMMAND. YOU ANSWERED JUSTICE ROBERTS' QUESTIONS IN A HYPOTHETICAL, ARE YOU ACCEPTING THAT HYPOTHETICAL, OR THAT ASSUMPTION -- NOT

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HYPOTHETICAL. ASSUMPTION, OR WHAT IS YOUR BEST ARGUMENT THAT IT IS NOT A COMMAND? MR. MONGAN: WE ARE NOT. THIS COURT AUTHORITATIVELY CONSTRUED 5000 A AS NOT A COMMAND. IT SAYS IT WAS A CHOICE BETWEEN BUYING MINIMUM COVERAGE THAT IS SET OUT IN SUB A OR MAKING THE ALTERNATIVE TAX PAYMENT IN SUB B , THAT IS AN AUTHORITATIVE CONSTRUCTION THAT CONGRESS RELIED ON WHEN IT MANDATED THE DECISION IN 5000 A. CONGRESS DID NOT INDICATE THAT IT WANTED TO DEPART FROM THE CHOICE, RATHER IT RELIED ON THE CHOICE CONSTRUCTION, ZERO DOUBT

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THE TAX AND THE MEANS OF MAKING THE PROVISION OPERATIVE. I THINK THIS IS A CRITICAL POINT, CONGRESS WAS ENTITLED TO RELY ON THE AUTHORITATIVE CONSTRUCTION AND WE OUGHT TO GIVE CONGRESS THE BENEFIT OF THE DOUBT THAT IT WAS DOING WHAT IT SAID IT WAS DOING, PRESERVING A LAWFUL CHOICE RATHER THAN IMPOSING -- JUSTICE SOTOMAYOR: THAT I HAVE NO QUARREL WITH. BUT WHY SHOULD WE PRESUME A COMMON CITIZEN WHO WANTS TO COMPLY WITH THE LAW WOULD MAKE THAT ASSUMPTION? SHOULD MAKE THAT ASSUMPTION LEGALLY. MR. MONGAN: YOUR HONOR, I THINK

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TO THE EXTENT THAT A COMMON CITIZEN IS CONSIDERING THE INTRICACIES OF FEDERAL LAW, THEY WILL CONSIDER THIS COURT'S AUTHORITATIVE AND PROMINENT HOLDING AND THEY WOULD ALSO CONSIDER THE VERY PUBLIC AND REPEATED PRONOUNCEMENTS OF THE PRESIDENT AND MEMBERS OF CONGRESS WHO SAID WE HAVE GOTTEN RID OF THE INDIVIDUAL MANDATE AND NOW YOU ARE ALLOWED TO FREELY CHOOSE WHAT TO DO WITH WHETHER TO BUY INSURANCE. JUSTICE SOTOMAYOR: I UNDERSTAND YOUR STANDING ARGUMENT WITHIN ABSOLVING THE STATE.

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BUT, ARE YOU ARGUING THAT THE STATES ARE NOT HARMED BY THE COST OF MORE PEOPLE ENROLLING IN INSURANCE? AS A LEGAL MATTER, OR IS THAT A FACTUAL MATTER, YOU THINK THEY HAVE NOT YET DEMONSTRATED THAT THEY ARE HARMED. MR. MONGAN: AS A FACTUAL MATTER, YOU'RE ON SUMMARY JUDGMENT AND IT WAS THEIR BURDEN TO INTRODUCE SPECIFIC FACTS SAYING THAT AMENDMENT FIVE HOT -- 5000 A AFFECTS THEIR COSTS. JUSTICE SOTOMAYOR WORK: HOW DO

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YOU DEAL WITH THE ARGUMENT THAT YOU HAD THE BURDEN OF COMING FORTH WITH EVIDENCE. MR. MONGAN: IT IS NOT CONSISTENT WITH PRESIDENT. IT IS THE PLAINTIFF'S BURDEN TO SATISFY THE REQUIREMENTS OF STANDING. JUSTICE KAGAN: JUST CONTINUING ON THIS POINT OF STATE STANDING. WHY WOULDN'T IT BE RIGHT TO SAY SOMETHING LIKE, LOOK, YOU CAN EXPECT THAT AS A RESULT OF THE FLAW, MORE PEOPLE WILL BUY INSURANCE, EVEN WHEN THERE IS NO

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ENFORCEMENT MECHANISM, JUST THE FORCE OF LAW ITSELF WILL ENCOURAGE PEOPLE TO BUY INSURANCE, AND TEXAS IS SAYING THAT THAT COST US MONEY. IT COSTS US MONEY BECAUSE OF ITS EFFECT ON PROGRAMS LIKE MEDICAID AND IT COSTS US MONEY BECAUSE WE HAVE TO SEND OUT THESE FORMS SAYING THAT YOU HAVE BOUGHT INSURANCE. I THINK THOSE ARE TEXAS'S DOSE -- TEXAS' TWO ARGUMENTS. MR. MONGAN: WE THOUGHT THAT THAT MIGHT BE ENOUGH AT THE PLEADING STAGE, BUT NOT AT THE SUMMARY JUDGMENT STAGE.

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FRANKLY, IF WE ARE MISTREATING THOSE PAGES WE WOULD BE HAPPY TO LOSE ON THE ISSUE OF STATE STANDING AND LITIGATE ON THE MERITS AND HAVE TEXAS' MINIMAL SHOWING HERE SET THE BAR FOR STATE PLAINTIFF STANDING THEORIES GOING FORWARD. WE DO NOT THINK THAT YOUR CASES ALLOW IT. JUSTICE KAGAN: AND WHAT CASE DOES NOT ALLOW IT? MR. MONGAN: IT IS A PRINCIPLE THAT A PLAINTIFF MUST INTRODUCE SPECIFIC FACTS TO SHOW INJURY AND CAUSATION, AND THAT, WE WOULD THINK, WOULD REQUIRE

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SOMETHING MORE THAN SPECULATION OR SUPPOSITION. JUSTICE KAGAN: NOW TO THE INDIVIDUAL PLAINTIFF'S SIDES, WHY SHOULDN'T THE FORCE OF LAW ITSELF, A PERSON CAN SAY, IF THE LAW SAYS I NEED TO DO SOMETHING, THEN I HAVE TO DO SOMETHING, AND WE WANT CITIZENS TO BE LAW-ABIDING. WHY ISN'T THAT ENOUGH TO CREATE STANDING? MR. MONGAN: I UNDERSTAND THAT POINT, BUT I THINK IT IS CONTRARY TO WHAT THIS COURT HAS SAID IN CASES LIKE POPE. THERE IS A DOCTOR PLAINTIFF WHO

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SAID THAT I AM LOOKING AT THIS LAW THAT SAYS I CANNOT GIVE ADVICE TO MY PATIENT AND I THINK THE LAWS UNCONSTITUTIONAL AND IT HARMS ME, BECAUSE I AM NOT ABLE TO GET THIS ADVICE AND THE COURT SAYS NOT ENOUGH. YOU ALSO HAVE TO SHOW A REAL THREAT OF ENFORCEMENT. I THINK THAT WOULD BE A DEPARTURE FROM WHAT THIS COURT INDICATED BEFORE AND IT MIGHT OPEN THE DOOR TO ADDITIONAL REINFORCEMENT CHALLENGES. JUSTICE GORSUCH: LET ME PICK UP WHERE JUSTICE KAGAN LEFT OFF. AS I UNDERSTAND IT THE UNITED

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STATES COULD STILL BRING A CIVIL ACTION AND ENFORCE THE MANDATE UNDER 26 USC 7402A. MR. MONGAN: THAT IS NOT MY UNDERSTANDING, I THINK THIS COURT MADE CLEAR THAT THE ONLY LEGAL CONSEQUENCE OF NOT PURCHASING INSURANCE IS THE REQUIREMENT TO PAY A TAX, AND CONGRESS HAS REPEALED OR ZEROED OUT THE TAX. THERE ARE NO REMAINING LEGAL CONSEQUENCES. JUSTICE GORSUCH: LET US SUPPOSE

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THAT YOU ARE MISTAKEN AND 74 TO -- 7402A WOULD ALLOW ENFORCEMENT ACTION, WOULD THAT CHANGE YOUR VIEW ABOUT THE STANDING? MR. MONGAN: POTENTIALLY, ALTHOUGH WHAT THIS COURT HAS LOOKED TOO IS NOT JUST THE POTENTIAL OF AN ENFORCEMENT ACTION ABOUT WHETHER THERE IS REAL THREAT OF ENFORCEMENT. I DO NOT SEE HOW THEY WOULD ESTABLISH THAT BECAUSE THE FEDERAL GOVERNMENT INDICATED THAT THERE IS NO FURTHER REQUIREMENT FOR INDIVIDUALS TO PURCHASE HEALTH INSURANCE, AT LEAST AT THE HIGHEST LEVELS OF THE EXECUTIVE BRANCH.

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THAT IS THE SIGNAL SENT OUT TO THE COUNTRY. JUSTICE GORSUCH: INDIVIDUALS WHO HAVE TO WAIT AN ENFORCEMENT ACTION CHALLENGE -- TO BRING UP A CHALLENGE TO A FEDERATED -- FEDERAL STATUTE TO -- STATUTE. MR. MONGAN: WE ARE HAPPY TO LITIGATE THIS QUESTION ON THE MERITS BECAUSE WE DO NOT THINK THEY WILL HAVE A PLAUSIBLE BASIS FOR READING THIS IS A COMMAND AND WE WOULD BE HAPPY TO HAVE THE COURT REACH THE QUESTION ON THE MERIT. JUSTICE GORSUCH: TOUCHING ON THE

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STATES, I THOUGHT I HEARD YOU AGREE THAT THE AREA STANDING, THAT THERE IS RAISE COSTS ON ENROLLMENT BASED INJURIES OR COMPLIANCE-BASED INJURIES COULD BE ENOUGH TO SECURE STANDING, IT IS JUST A FAILURE OF PROOF AT THE SUMMARY JUDGMENT STAGE. IS THAT A FAIR SUMMARY OF YOUR POSITION? MR. MONGAN: THAT FOLLOWS FROM DEPARTMENT OF COMMERCE, STATES CAN ESTABLISH STANDING IF THEY ACTUALLY IDENTIFY SPECIFIC IMPACTS SHOWING CHOICES BY THIRD PARTIES WILL DRIVE UP STATE

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COSTS. UNLIKE THE CENSUS CASE WHERE WE HAD LOTS OF EXTRA DECLARATION IN SPECIFIC FACTS AND DETAILED MEMORANDA SHOWING THE CONNEXUS -- CONNECTION, TEXAS HAS NOT INTRODUCED ANY SPECIFIC FACTS INDICATING THAT AMENDED 5000 A WILL INFLICT CONCRETE HARM. JUSTICE GORSUCH: IF ALL WE NEED IS A SUBSTANTIAL RISK OF EFFECT DOUBLE -- WHY ISN'T THE CONGRESSIONAL BUDGET OFFICE REPORT STATING THAT EVEN AFTER THE PENALTY IS REMOVED, A SMALL

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NUMBER OF PEOPLE WILL ENROLL BECAUSE OF A WILLINGNESS TO COMPLY WITH THE LAW, AND IT FOLLOWS FROM THAT THAT THERE WILL BE INCREASED COSTS TO THE STATES. MR. MONGAN: YOUR HONOR, I THINK THE REPORT FROM 2017 IS THE BEST THING THEY HAVE GOING ON STATE STANDING. WE DO NOT THINK IT IS SUFFICIENTLY SPECIFIC, IT IS A SINGLE SENTENCE AND NO DATA TO BACK IT UP. JUSTICE DO YOU JUST SAID -- DISAGREE -- JUSTICE GORSUCH: YOU DISAGREE WITH THAT? SO IT IS AN UNCONTESTED FACT?

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MR. MONGAN: I DO NOT BELIEVE THAT IS RIGHT. IT DOES NOT SAY ANYTHING SPECIFIC TO THE PLAINTIFF'S STATE OR PLAINTIFFS WHO ARE ELIGIBLE FOR HEALTH PLANS. SO WE WOULD NOT THINK THAT THAT IS AN OFFSET TO THE SUMMARY JUDGMENT PHASE. JUSTICE CAVANAUGH: GOOD MORNING, TO PICK UP ON INDIVIDUAL STANDING QUESTIONS ON THE CHIEF JUSTICE AND JUSTICES KAGAN AND GORSUCH, SUPPOSE CONGRESS PASSED A LAW THAT EVERYONE WHO LIVES IN

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A HOUSEFLY IN AMERICAN FLAG IN FRONT OF THE HOUSE. THERE IS NO PENALTY AND THEN THE QUESTION IS INDIVIDUAL STANDING. UNDER LUJAN, YOU ARE THE OBJECT OF A REGULATION AS A HOMEOWNER. IT IS A FORCED ACQUISITION OF AN UNWANTED GUTTER SERVICE, WHY IS THAT NOT ENOUGH TO GIVE YOU STANDING, KNOWING THAT SOME PEOPLE ARE GOING TO DO THAT, BUY THE FLAGS AND FLY THEM BECAUSE CONGRESS REQUIRES THAT? MR. MONGAN: YOUR HONOR, IF I THINK THEIR THEORY WAS IDENTICAL TO WHAT THE INDIVIDUAL

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PLAINTIFFS ADVANCED HERE, WE ARE ACTIVELY COMPLYING, AND IT IS CAUSING US HARM, THAT WOULD RUN INTO A SIMILAR POWER -- PROBLEM, BUT THERE MAY BE OTHER LEGALLY COGNIZABLE INJURY IN THE FIRST AMENDMENT CONTEXT. AND, WE ARE NOT DISPUTING THAT PLAINTIFF'S CAN TRY AND ADVANCE THOSE KIND OF THEORIES OF INJURY, WE DO NOT THINK THEY ARE SUBSTANTIATED UNDER THE CIRCUMSTANCES OF THIS CASE. KAVANAUGH JUSTICEJUSTICE -- YOU DISAGREE THAT SOME PEOPLE WILL FOLLOW THE

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MANDATE AND PURCHASE INSURANCE BECAUSE OF THEIR WILLINGNESS TO FOLLOW THE LAW. MR. MONGAN: I DO NOT HAVE A BASIS FOR DISAGREEING OR AGREEING. I BELIEVE IT IS UNLIKELY THAT INDIVIDUALS WHO WOULD NOT ALREADY TAKE ADVANTAGE OF THE VERY GENEROUS MEDICAID PROGRAMS OR STATE EMPLOYER HEALTH PLANS WOULD DO IT SOLELY BECAUSE OF AN UNENFORCEABLE COMMAND, IF WE ARE WRONG ON THAT IT BRINGS US TO THEIR UNTENABLE MERITS THEORY THAT CONGRESS HAS CREATED A COMMAND THAT THIS COURT SAID WAS CONSTITUTIONALLY IMPERMISSIBLE EVEN AS IT WAS TELLING THE

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AMERICAN PEOPLE THAT IT WAS TRYING TO GET RID OF OR MAKE AN THIS PROVISION. JUSTICE KAVANAUGH: ON THE POINT THAT YOU MENTIONED ALLOWING STANDING INDIVIDUALS HERE MIGHT OPEN THE DOOR, ARE YOU AWARE OF ANY OTHER EXAMPLES IN THE U.S. CODE WHERE CONGRESS HAS ENACTED A TRUE MANDATE, NOT SOMETHING HORTATORY, BUT A TRUE MANDATE WITH NO PENALTIES? MR. MONGAN: WE DO NOT THINK THAT WHAT -- THAT IS WHAT CONGRESS DID. JUSTICE KAVANAUGH: MR. MONGAN: I TAKE THAT POINT, BUT I WAS

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WONDERING IF YOU ARE AWARE OF AN EXAMPLE. ON THE MERITS OF THE CLAIM, UNDER NFIB, OBVIOUSLY IT WAS JUSTIFIED UNDER THE TAXING CLAUSE, BUT IT DOES NOT RAISE REVENUE. HOW DO YOU RESPOND TO THAT POINT? MR. MONGAN: IN LIGHT OF THE NFIB CONSTRUCTION, WHAT CONGRESS DID WAS TO CREATE INOPERATIVE PROVISION. IT DOES NOT REQUIRE ANYBODY TO DO ANYTHING AND CONGRESS HAS ROUTINELY CREATED INOPERATIVE HIS -- AN OPERATIVE PROVISIONS

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AND THE COUNTRY HAS DONE THAT SINCE THE CONSTITUTION AND THEY ARE NOT CONSIDERED OBSTRUCTIVE. JUSTICE BAIRD: WHAT SHOULD WE MAKE -- BARRETT: WHAT SHOULD WE MAKE THAT CONGRESS DID NOT REPEAL THE PROVISION. YOU ARE ACTUALLY -- ACTING TO TREAT IT AS IF IT WAS FUNCTIONALLY REPEALED, DOES THAT MATTER? MR. MONGAN: I THINK CONGRESS UNDERSTOOD HOW THIS COURT HAD CONSTRUED 5000 A AS A CHOICE AND UNDERSTOOD THAT IT WOULD MAKE THE PROVISION EFFECTIVELY INOPERATIVE TO ZERO OUT THE TAX

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THAT WAS A REASONABLE THING FOR IT TO DO. THEY WERE OPERATING UNDER RECONCILIATION PROCEDURES THAT ALLOWED THEM TO MAKE THE CHANGE COMPLIANT WITH THE RULE AND CBO TOLD IT THAT IT -- THAT THERE WAS NO MATERIAL DIFFERENCE BETWEEN REPEALING THE PROVISION AND ZEROING OUT THE TAX. JUSTICE BARRETT: LET ME ASK YOU ANOTHER QUESTION RELATED TO THE HYPOTHETICALS. CHIEF ASKED YOU ABOUT A MANDATE TO MOW THE LAWN AND JUSTICE THOMAS ASKED YOU ABOUT FORCING PEOPLE TO WEAR A MASK. WHAT IF IN THIS CASE, AND AS I

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UNDERSTAND IT TO BE THE CASE, YOU HAVE TO CERTIFY WHETHER YOU APPLY OR NOT AND THEN THE GOVERNMENT KEEPS TRACK OF IT. DOES THAT CHANGE YOUR VIEW OF WHETHER THERE IS AN INJURY? MR. MONGAN: I AM NOT SURE IF THERE IS AN ONGOING CERTIFICATION REQUIREMENT IN THE TAX FORMS. PERHAPS THAT WOULD CHANGE THE ANALYSIS, BUT IF WE GET TO THE MERITS, THEN I THINK THAT IT IS PLAIN THAT THIS IS NOT AN IN NOT -- AN OPERATIVE PROVISION AND THERE IS NO ONGOING COMMAND.

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EVEN IF THAT ESTABLISHED STANDING, IT WOULD NOT ALLOW INDIVIDUALS PREVAIL. I WOULD LIKE TO MAKE THE POINT IF THE COURT WAS TO DISAGREE WITH US AND HOLD THAT THIS IS A NAKED COMMAND, THEN THE ONLY PROPER REMEDY WOULD BE AN ORDER MAKING THE PROVISION UNENFORCEABLE AND INVALID. THAT WOULD COMPLETELY ADDRESS THE PROBLEM. WHAT WOULD BE DEEPLY PROBLEMATIC FOR THE PLAINTIFF, PETITIONER STATES AND THE REST OF THE NATION AS IF PLAINTIFF'S WERE --

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IS IF PLAINTIFFS WERE ALLOWED TO LEVERAGE THIS PROVISION TO TEAR DOWN HUNDREDS OF OTHER -- JUSTICE BARRETT: THE STATE HAS SAID 1095 B AND C SOME PASSES TO CERTIFY IF WHETHER OR NOT ONE MAINTAINS THE MINIMUM COVERAGE NECESSARY, IS THAT INCORRECT? MR. MONGAN: YOU HAVE TO SEND OUT THE FORMS, THOSE ARE REQUIRED BY SEPARATE PROVISIONS AND THEY SERVE CONTINUING PURPOSES RELATED TO TAX CREDIT AND EMPLOYER MANDATE. THEY HAVE NOTHING TO DO WITH

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5000 A. THOSE ARE COSTS THAT THEY WOULD CONTINUE TO HAVE REGARDLESS OF WHETHER 5000 A WERE ON THE BOOKS OR NOT. JUSTICE BARRETT: INDIVIDUALS DO NOT HAVE TO CERTIFY THAT THEY HAVE MAINTAINED COVERAGE? MR. MONGAN: THE IRS WEBSITE SAYS THERE IS NO LONGER AN OBLIGATION ON THE ANNUAL TAX FORMS TO CHECK THE BOX REGARDING COVERAGE. THEY GOT RID OF THAT REQUIREMENT. >> A MINUTE TO WRAP UP. MR. MONGAN: THE INTENT OF THE 2017 AMENDMENT WAS TO MAKE 5000 A INOPERATIVE AND UN-OF SESSION

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UNENFORCEABLE, NOT TO IMPOSE A COMMAND THAT THE COURT SAID WAS UNCONSCIOUS TO SHOW. THE STATUTORY FRAMEWORK SAID THAT IT WANTED EVERY OTHER ACA PROVISION TO MAINE AND EFFECTIVE 5000 A WERE UNENFORCEABLE BECAUSE THAT IS THE SITUATION CONGRESS CREATED. RESPONDENTS INSEPARABILITY THEORY WOULD DO -- WOULD INVALIDATE HUNDREDS OF PROVISIONS THAT CONGRESS CHOSE TO LEAVE IN PLACE AND ARE FUNCTIONING PERFECTLY WELL. IT WOULD CAUSE A NORM IS DISRUPT -- ENORMOUS DISRUPTION, CAST 20 MILLION AMERICANS OFF OF HEALTH

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INSURANCE DURING A PANDEMIC AND COST THE STATE TENS OF BILLIONS OF DOLLARS DURING A FISCAL CRISIS. THERE IS NO BASIS FOR THAT RESULTS IN TEXT, INTENT, OR PRECEDENT. >> THANK YOU. >> THANK YOU, AND MAY IT PLEASE THE COURT. RESPONDENTS ARE ASKING THIS COURT TO DO WHAT CONGRESS REFUSED TO DO WHEN IT VOTED DOWN OF -- A REPEAL OF THE ACA AND THE ARGUMENT IS UNTENABLE. THE 2017 CONGRESS DID NOT CONVERT IT FROM A CHOICE TO COMMAND, THE AMENDED STATUE DOES NOT REQUIRE ANYTHING OF ANYONE.

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AND IF ONE MISCONSTRUES IT OF A MANDATE IT IS NOT POSSIBLE THAT THE SAME CONGRESS THAT ELIMINATED ANY ECONOMIC PRESSURE TO PURCHASE AND ASSURANCE THOUGHT THAT AN UNENFORCEABLE MANDATE WAS SO VITAL THAT ITS INVALIDATION SHOULD DOOM THE REMAINDER OF THE ACA. THERE IS NO WAY THAT CONGRESS WOULD'VE PREFERRED AN OUTCOME THAT THROUGH MILLIONS OF PEOPLE OFF OF THEIR INSURANCE AND CREATES CHAOS FOR THE HEALTH CARE'S -- HEALTH CARE SECTOR. THEY TAKE THIS AS A GAME OF GOTCHA TO A WHOLE NEW LEVEL. THIS IS NOT A GAME. THE PRECEDENT REQUIRES RESPECT

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FOR THE CONSTITUTIONAL ROLE OF CONGRESS AND EMPHATICALLY FORECLOSE THE OUTCOME. >> EIGHT YEARS AGO, THOSE DEFENDING THE MANDATE EMPHASIZED THAT IT WAS THE KEY TO THE WHOLE ACT, EVERYTHING TURNED ON GETTING MONEY FROM PEOPLE FORCED TO BUY INSURANCE TO COVER ALL OF THE OTHER SHORTFALLS IN THE EXPANSION OF HEALTH CARE. THE BRIEFS ON THE OTHERS GO OVER ALL OF THAT. NOW THE REPRESENTATION IS THAT EVERYTHING IS FINE WITHOUT IT.

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WHY DEBATE AND SWITCH? WAS CONGRESS WRONG WHEN IT SAID THAT THE MANDATE WAS THE KEY TO THE WHOLE THING, THAT WE SPENT ALL OF THAT TIME TALKING ABOUT BROCCOLI FOR NOTHING? MR. VERRILLI: MR. CHIEF JUSTICE, IN 2010 CONGRESS MADE A PREDICTIVE JUDGMENT ABOUT WHAT WOULD NEEDED -- BE NEEDED TO -- THEY ADAPTED A CARROT AND STICK APPROACH. THERE WERE GENEROUS SUBSIDIES TO DRAW PEOPLE INTO THE MARKET AND

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IT WAS EASY TO ENROLL. THERE WAS ALSO A STICK, THE TAX PAYMENT. I DO NOT THINK THERE IS ANY DOUBT THAT THE 2010 CONGRESS THOUGHT THAT WAS IMPORTANT. IT HAS TURNED OUT THAT THE CARROT WORKED WITHOUT THE STICK. THAT IS THE JUDGMENT THAT CONGRESS MADE IN 2017 AND WHAT THE CBO TOLD CONGRESS. THE CONGRESS ASKED WHAT WOULD HAPPEN IF WE REPEAL THE MANDATE OUTRIGHT AND ZERO OUT THE TAX? IN THE CBO SAID WHETHER YOU ZERO OUT THE TAX OR REPEAL THE MANDATE, THE EFFECTS WILL BE THE SAME, THE MARKET WILL REMAIN

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STABLE. IF ONE LOOKS AT THE AMICUS BRIEFS FILED BY THE HEALTH INSURANCE INDUSTRY, BLUE CROSS, AMA, ALL OF THOSE BRIEFS ARE CONFIRMING THAT THAT JUDGMENT WAS CORRECT AND IT TURNS OUT THAT THE CARROT WORKED WITHOUT THE STAKE AND BROUGHT ENOUGH PEOPLE INTO THE MARKET TO ALLOW IT TO SUSTAIN ITSELF. CONGRESS IS ALLOWED TO LEARN FROM EMPIRICAL EXPERIENCE IN THE WORLD AND ADJUST ITS POLICY CHOICES AND THAT IS WHAT HAPPENED HERE. CHIEF JUSTICE: THE GENERAL WAS ASKED IF THE BURDEN OF THE STATE WAS ENOUGH TO SUPPORT STANDING.

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HE HAD A LITTLE BIT OF CONFLICT REPRESENTING THE STATE, BUT YOU DO NOT. DO YOU THINK THAT THAT BURDEN IS SUFFICIENT? THE PAPERWORK BURDEN ESSENTIALLY? MR. VERRILLI: I DO NOT BECAUSE THE PAPERWORK BURDEN FLOWS FROM PROVISIONS OTHER THAN 5000 A, AND UNLESS THE COURT WERE TO ACCEPT THE STANDING THROUGH INSEPARABILITY THEORY, I DO NOT THINK THERE IS A BASIS FOR FINDING STANDING ON THE BASIS OF THAT. JUSTICE THOMAS: THANK YOU. COUNSEL, THE JUSTICE BARRETT

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ASKED WHETHER OR NOT JUST ELIMINATING THE PENALTY OF THE ACT WAS NOT CHANGED WITHOUT THE MANDATE PROVISIONS. JUST THE PENALTY WAS ELIMINATED. SO, WAS THAT ALL THAT WAS NECESSARY TO ILLUMINATE THE CENTRALITY OF THIS -- AND IMPORTANCE OF THIS PROVISION? WHEN YOU ARGUE THAT THIS CASE CAME UP TO THE CHIEF JUSTICE SOME YEARS AGO, THIS PROVISION WAS THE HEART AND SOUL OF THE AFFORDABLE CARE ACT, AND I KNOW

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THE ASSESSMENT HAS CHANGED, BUT THE PROVISION HAS NOT CHANGED WITH THE PENALTY. WOULD YOU EXPLAIN WHY THAT PROVISION WAS SO CRITICAL TO THE CENTRALITY OF THIS PROVISION? MR. VERRILLI: I THINK THIS GOES TO THE HEART OF THE SEVERALABIL -- SEVERABILITY QUESTION. THEY SAY THAT IT CONTINUES TO EXIST AND EVEN THOUGH IT IS UNENFORCEABLE, IT IS STILL CENTRAL TO THE OPERATION OF THE ACT, SUCH AS UNDER THE COURT'S PRECEDENTS, CONGRESS WOULD'VE

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PREFERRED THAT THE ENTIRE ACT COME DOWN. AND I THINK THERE ARE FOUR REASONS WHY THAT CANNOT BE RIGHT. YOU HAVE TO ACCEPT THAT THE 2017 CONGRESS SAID WE WILL ELIMINATE ANY FINANCIAL PRESSURE TO STAY IN THE MARKET, BUT THE MORAL PERSUASION IS ENOUGH THAT THE LAW HAS TO FALL. SECOND, CONGRESS ASKED THE CBO WHAT WOULD HAPPEN IF THEY REPEALED, WHAT WOULD HAPPEN IF THEY ZEROED OUT THE TAX, AND THE CDO SAID THAT THE EFFECT ON THE MARKET WILL BE THE SAME EITHER WAY, THEY WILL BE NO MATERIAL

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DIFFERENCE BETWEEN ZEROING OUT THE TAX AND REPEALING SECTION 5000 A SUB A AND THAT IS THE CONTEXT IN WHICH CONGRESS ACTED. THIRD, THE CONTEMPORARY HISTORY IS QUITE CLEAR. THE PRESIDENT, CONGRESSIONAL LEADERSHIP, AND THE COMMITTEE CHAIRMAN WERE SHOUTING FROM THE ROOFTOPS THAT THEY WERE REPEALING THE MANDATE AND GIVING CITIZENS COMPLETE FLEXIBILITY ABOUT WHETHER TO PURCHASE INSURANCE. THAT IS NOT WHAT YOU WILL BE SAYING TO THE WORLD IF YOU THOUGHT IT WAS ESSENTIAL TO KEEP THE SYSTEM GOING. FINALLY, EVEN IF YOU THOUGHT THAT CONGRESS HAD AN INTEREST IN CONTINUING ALL SUASION, IT DOES

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NOT MEAN THEY WOULD'VE PREFERRED TO BRING THE WHOLE ACA CRASHING DOWN. I THINK THAT IS A LOT LIKE CELIA LAW, IN CONTRAST YOU HAD ACTUAL EVIDENCE THAT CONGRESS WANTED THE DIRECTOR TO BE INDEPENDENT OF THE PRESIDENT. AND HERE, IT WAS JUST A HYPOTHESIS, THERE WAS EVIDENCE. THE COURT MADE THE JUDGMENT THAT CONGRESS WOULD NOT HAVE PREFERRED TO SEE THAT ENTIRE THING COMING DOWN IF THE INDEPENDENCE WAS ELIMINATED, AND THAT REASONING APPLIES HERE. >> JUSTICE BREYER?

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CAN YOU HEAR ME. JUSTICE BREYER: YES I CAN. >> THANK YOU. JUSTICE BRIAR: I AM CONNECTED, I THINK. QUESTION ABOUT THE SEVERABILITY. SINCE AT THE TIME WE HEARD THAT WHEN THIS WAS FIRST PASSED THAT THE MANDATE WAS ABSOLUTELY CRUCIAL, AS YOU POINTED OUT BECAUSE UNLESS PEOPLE BUY INSURANCE UNDER THIS MANDATE,

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THE OTHER PROVISIONS SUCH AS YOU DO NOT HAVE TO WORRY ABOUT PRE-EXISTING CONDITIONS AND ETC. WILL NOT WORK. WHY ISN'T THAT -- >> I AM SORRY, JUSTICE ALITO? >> SOMETHING HAPPENED. I AM SORRY, MY MACHINE DID NOT WORK. >> I THOUGHT JUSTICE BREYER WAS STILL ON HIS TIME. >> NO, JUSTICE ALITO? JUSTICE ALITO: THANK YOU. THIS DOES SEEM LIKE DEJA VU ALL OVER AGAIN. BUT, LET ME ASK YOU THIS

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QUESTION ABOUT THE THEORY OF STANDING BY SEVERABILITY. SUPPOSE THERE IS A SIMPLE STAT YOU WITH TWO PROVISIONS. I AM HURT BY B AND NOT HURT BY A. A IS UNCONSTITUTIONAL IN THE STATUTE HAS A CLAUSE THAT SAYS IF A FALLS, B FALLS TOO. UNDER THOSE CIRCUMSTANCES WHAT I LACKED STANDING TO CHALLENGE A. MR. VERRILLI: THAT TESTS ARE LIMITS OF STANDING THROUGH SEVERABILITY, AND IT WOULD BE HARD TO MAINTAIN THAT PROVISION. BUT I WILL SAY IS THIS, BUT IT

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DOES POINT OUT IS THAT IF THE COURT IS GOING TO VALIDATE THE CITY -- THIS OF STANDING THROUGH SEVERABILITY, IT SHOULD NOT DO SO WITH A PRESUMPTION OF INSEVERABILITY AT THE STANDING STAGE, BECAUSE SITUATIONS LIKE THE ONE YOUR HYPOTHETICAL DESCRIBES WILL BE RARE. MOST OF THE TIME, THE PLURALITY OPINION KNOWLEDGE -- ACKNOWLEDGES THAT SEVERABILITY WILL BE THE OUTCOME. IF ONE PRESUMES AND EVEN ENCASES LIKE THIS ONE WITHOUT THAT CLAUSE, THEN I THINK THAT IS AS THE GENERAL IDENTIFIED AN OPEN

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INVITATION TO ADVISORY OPINIONS BECAUSE YOU WILL GRANT STANDING ON THE BASIS OF THE INJURY CAUSED BY STANDING B, AND HOLD CONST -- STANDING A UNCONSTITUTIONAL. SO I DO THINK IF THE COURT REALLY THINKS THAT STANDING THROUGH INSEPARABILITY IS A VALID THEORY OF ESTABLISHING ARTICLE THREE INJURY THAT THAT OUGHT TO COME WITH AN ANALYSIS AT THE STANDING STAGE OF THE SEVERABILITY ISSUE. JUSTICE ALITO: WHAT YOU HAVE SAID ABOUT WHAT CONGRESS THOUGHT

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IN 2017 PERHAPS ILLUSTRATES THE DIFFICULTY THAT YOU ARE TRYING TO IDENTIFY AND ANYTHING THAT WAS FOUGHT BY THE MAJORITY OF CONGRESS OTHER THAN WHAT IT SAYS IN A LAW. A LOT OF PEOPLE, A LOT OF MEMBERS AND 2017 MAY WELL HAVE THOUGHT THAT ELIMINATING THE PENALTY OR TAX WOULD NOT CAUSE ANY HARM, AND THE WHOLE ACT WOULD CONTINUE TO FUNCTION WELL WITHOUT IT, BUT OTHERS WHO VOTED FOR IT MIGHT HAVE DONE SO PRECISELY BECAUSE THEY WANTED THE WHOLE THING TO FALL. I DO NOT KNOW WHAT WE CAN MAKE

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ABOUT WHAT WAS DONE IN 2017 ALONG THE LINES YOU HAVE SAID. MR. VERRILLI: I THINK THAT QUESTION POINTS OUT THE WISDOM OF THE ANALYSIS IN THE A APC ORALITY TO TALK ABOUT OBJECTIVE OBJECTIVE OCCASIONS, AND BEYOND THAT, I WOULD SAY THAT I DO NOT THINK THAT IT WOULD BE AN APPROPRIATE THING FOR THE COURT TO DO TO ASSUME THAT THERE WERE MEMBERS OF CONGRESS WHO WERE ACTING IN VIOLATION OF THEIR OATH TO UPHOLD THE CONSTITUTION BY VOTING FOR A PROVISION THEY KNEW TO BE UNCONSTITUTIONAL IN THE HOPE TO BRING THE LAW DOWN,

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I DO NOT THINK THAT IS A PREMISE THAT THE COURT OUGHT TO INDULGE IN AND APPLYING THE OBJECTIVE FACTORS AND WHAT WE KNOW IS THAT CONGRESS ZEROED OUT THE TAX PENALTY, A VERY STRONG TEXTUAL SIGNAL THAT CONGRESS DID NOT THINK THAT 5000 A SUB A NEEDED TO PLAY ANY SIGNIFICANT ROLE IN MAINTAINING THESE MARKETS. >> THANK YOU. JUSTICE BREYER WE APOLOGIZE FOR THE AUDIO DIFFICULTIES AND WE WILL GO BACK TO YOU. JUSTICE JUSTICE BREYER: THAT IS ALL RIGHT, GO AHEAD.

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JUSTICE JUSTICE SOTOMAYOR: I AM ASSUMING YOUR ANSWER TO BE THAT GIVEN A CHOICE OR AMONG, BECAUSE THERE COULD BEEN MANY CHOICES, BETWEEN INVALIDATING THE ENTIRE ACA AND JUST ZEROING OUT THE TEXT THAT THE 2017 CONGRESS'S CHOICE WAS JUST A ZERO OUT THE TEXT, CORRECT? MR. VERRILLI: THAT IS MANIFEST ON THE RECORD, THERE WERE EFFORTS TO REPEAL THE ACA AND THOSE FAILED IN THE SENATE, THEY WERE VOTED DOWN, SO WE KNOW THAT

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THE EFFORT TO REPEAL THE ENTIRE ACA WAS VOTED DOWN AND THE ONLY CHANGE WAS ZEROING OUT THE TAX. JUSTICE SOTOMAYOR: IF THE CHOICE IS AGAIN DECLARING THE INDIVIDUAL MANDATE UNCONSTITUTIONAL, IF ONE SEES IT AS A COMMAND, THE 2017 CONGRESS HAS TOLD US THAT IT DOES NOT WANT THE REST OF THE ACT TO FOLLOW, CORRECT? MR. VERRILLI: THAT IS OUR POSITION, AND IT WOULD BE UTTERLY INCONSISTENT WITH EVERYTHING CONGRESS HAD BEFORE IT WITH THE JUDGMENT CONGRESS

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MADE AND WITH THE WIDE ANNOUNCEMENT TO THE PUBLIC THAT THIS AMENDMENT EFFECTIVELY REPEALED THE MANDATE. JUSTICE SOTOMAYOR: THERE IS AN INTUITIVE FEELING THAT IF THE INDIVIDUAL MANDATE IS STRUCK DOWN. THAT THEY WOULD HAVE LESS REPORTING COSTS, BECAUSE, OR LESS ENROLLEES IN THEIR MEDICAID PROGRAM, THAT IS THEIR ARGUMENT ABOUT STANDING, CORRECT?

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MR. VERRILLI: ASIDE FROM INSEPARABILITY, THAT IS THE ONLY DIRECT INJURY. JUSTICE SOTOMAYOR: WOULD YOU ADDRESS THAT ARGUMENT. YOUR COCOUNSEL FOR THE STATES SEEMS TO SAY THAT THERE IS NO EVIDENCE THAT IS TRUE OR FALSE, THAT I THOUGHT MANY OF THE BRIEF SHOWED THAT IT WAS A FAULTY PREMISE FOR OTHER REASONS, DO YOU AGREE WITH THAT? MR. VERRILLI: THERE IS NO EVIDENCE, WE WENT THROUGH THAT AND THAT IS CORRECT. AND UNDER LUJAN, THEY HAD A

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BURDEN AND DID NOT MEET IT. THE ARGUMENT IS WHAT THEY CLAIM IS COMMON SENSE, WHICH IS THAT PEOPLE ARE GOING TO READ THIS MANDATE AND GOING TO ENROLL, AND THAT, -- AND MEDICAID TO SATISFY IT. I THINK IT IS THE OPPOSITE OF COMMON SENSE. THE THEORY IS THAT THERE ARE PEOPLE OUT THERE NOT ENROLLED IN MEDICAID BEFORE WHEN THE MANDATE WAS ACCOMPANIED BY A TAX CONSEQUENCE AND WERE SUBJECTING THEMSELVES TO THE TAX CONSEQUENCE. CONGRESS AMENDS IT AND THE PEOPLE SAID THAT CONGRESS GOT RID OF THE TAX CONSEQUENCE BUT

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THERE SEEMS TO BE A MANDATE SO I WILL ENROLL IN MANDATE NOW. >> JUSTICE KAGAN. JUSTICE KAGAN: I UNDERSTAND YOUR VIEW THAT THE APPEARANCE OF HOW THIS WORKS -- OF HOW THIS LAW WORKS HAS CHANGED SINCE 2010 OR 2012. BUT, WE STILL HAVE SOME RELICS OF THE OLD VIEW, WHICH IS THAT THE INDIVIDUAL MANDATE WAS A KEY TO EVERYTHING, WE HAVE SOME RELICS OF THAT IN THE LAW. WE WERE POINTING SPECIFICALLY AT WHAT THE PLAINTIFFS CALL THE

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INSEPARABILITY PROVISION, WHICH IS A FINDING THAT THE MANDATE WAS ESSENTIAL TO CREATING EFFECTIVE HEALTH INSURANCE MARKETS. I AM WONDERING WHAT WE DO ABOUT THAT, THE FACT THAT THAT FINDING EXISTS IN THE LAW. DOES THAT CONSTRAIN US IN ANY WAY? MR. VERRILLI: IT IS CLEAR THAT IT DOES NOT OVERCOME THE PRESUMPTION OF SEVERABILITY BECAUSE IT IS NOT AN INSEPARABILITY CLAUSE. IF THE SECTION HAD SAID THAT 5000 A IS DECLARED UNCONSCIOUS TO SNOW THEN -- AND CONSTITUTIONAL THAT THEY SHOULD BE DECLARED SO.

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WE WOULD HAVE TO MAKE AN IMPLIED PEEL ARGUMENT. BUT, THE FINDING IS NOT AN OPERATIVE PROVISION AND IT IS JUST A FINDING. WHAT IS EXPRESSES AS THE 2010 CONGRESS' VIEW ABOUT THE STATE OF AFFAIRS THAT EXISTED INTO THOUSANDS -- IN 2010. THE CONTEXTUAL MATTER IS ADDRESSING 2000 -- 5000 A IN THE WAY IT WAS ENACTED, WHICH IS THE MANDATE TO PURCHASE INSURANCE BACKED BY THE TAX. THE ARGUMENT THAT MY FRIENDS ON THE OTHERS ARE MAKING IS THAT

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THE 2017 CONGRESS MUST HAVE CONTINUED TO AGREE WITH THE FINDING BECAUSE IT DID NOT REPEAL IT. THE 2017 CONGRESS COULD NOT HAVE AGREED THAT A REQUIREMENT BACKED BY TAX CONSEQUENCE WAS ESSENTIAL TO AN EFFECTIVE MARKET BECAUSE THE 27 -- 2017 CONGRESS ELIMINATED THE TAX CONSEQUENCE. I THINK THAT IS DIRECT PROOF THAT THE CONGRESS DID NOT SHARE THE VIEW OF THE 2010 CONGRESS EXPRESSED IN THE FINDING AND THEN IT COMES DOWN TO WHETHER YOU ARE GOING TO STRIKE THIS ENTIRE LAW DOWN BECAUSE THE CONGRESS DID NOT GO BACK AND CLEAN UP THE FINDING, BUT THERE

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WAS NO NEED, BECAUSE I SAID IT WAS NOT AN OPERATIVE PROVISION OF LAW AND EXPRESSES A PREDICTIVE JUDGMENT ABOUT CIRCUMSTANCES THAT EXISTED IN 2010 AND WHAT 2010 CONGRESS THOUGHT WOULD BE NECESSARY. THE FINDING TALKS ABOUT THE REQUIREMENT BEING ESSENTIAL TO CREATING THE MARKET. AND, BY 2017 THE MARKET HAD BEEN CREATED, IT WAS UP IN RUNNING. CBL TOLD CONGRESS THAT IT WOULD RUN IN A REASONABLE WAY IF YOU ELIMINATED THE PENALTY. >> JUSTICE GORSUCH. JUSTICE GORSUCH: GOOD MORNING.

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I WOULD LIKE TO IF WE COULD, PUT ASIDE STANDING AND YOUR REMEDIAL ARGUMENTS AND FOCUS ON THE MERITS. THIS COURT HELD THAT THE MANDATE WAS A PERMISSIBLE EXERCISE TO THE TAXING AUTHORITY BECAUSE IT PRODUCED REVENUE, AT LEAST SOME. THAT SEEMS TO HAVE WITHERED AWAY, AND WE ARE LET -- LEFT WITH THE COMMERCE AND NECESSARY AND PROPER CLAUSE WHICH THE COURT FORECLOSED LAST TIME AROUND. COULD YOU HELP ME WITH THAT.

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MR. VERRILLI: I THINK IT MIGHT HELP TO WALK THROUGH HOW WE SEE THIS. THE CONGRESS STARTED WITH THE DEFINITIVE CONSTRUCTION OF THE LAW, THAT THE COURT PRESUMES THAT CONGRESS TAKES THIS COURSE. UNLESS, IT CLEARLY INDICATES A DESIRE TO CHANGE IT AND WE DO NOT THINK IT DID THAT. IT STARTS ON THE PREMISE THAT THIS IS A LAWFUL CHOICE, AND IT WAS A LAWFUL CHOICE BETWEEN OBTAINING AND MAINTAINING INSURANCE AND PAYING THE TAX PRESCRIBED. AND, I DO NOT THINK THERE IS ANY DOUBT THAT CONGRESS WAS ACTING IN ITS POWERS WHEN HE DEMANDED

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SUBSECTION C TO REDUCE THE TAX TO ZERO, YOU CAN THINK ABOUT THAT WITH THE TAX POWER. WHAT REMAINS IS A STATUTE THAT IS NOT OPERATIVE AND DOES NOT HAVE ANY CONSEQUENCES, SO IT IS LIKE A STATUTE THAT HAS BEEN REPEALED, AND THAT IS WHY SO MANY DESCRIBED IT AS EFFECTIVELY AS A REPEAL. JUSTICE GORSUCH: LET US PUT IT ASIDE FOR THE MOMENT AND WE ARE FOCUSING ON THE MERITS AND ASSUMING THAT THE MANDATE IS STILL SOMETHING, IT IS ON THE BOOKS. WHAT ARE THE MERITS OF THAT UNDER THE COMMERCE CLAUSE?

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WHY AREN'T YOU CLEARLY FORECLOSED? MR. VERRILLI: WE ARE NOT MAKING AN ARGUMENT UNDER THE COMMERCE CLAUSE BECAUSE OF NFIB. OUR VIEW IS THAT BECAUSE IT IS AN AND OPERATIVE PROVISION THAT IT DOES NOT HAVE MORE NEED FOR ENUMERATED POWER. I UNDERSTAND THE PREMISE OF THE QUESTION IS TO DISAGREE WITH THAT. I THINK TO THE EXTENT THAT THE COURT THINKS AN ENUMERATED POWER IS NECESSARY, WE THINK COULD BE JUSTIFIED AS NECESSARY AND PROPER TO THE TAXING POWER BECAUSE IT LEAVES THE FRAMEWORK

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OF THE TAXING MECHANISM IN PLACE IN CASE CONGRESS WANTS TO DO IT IN THE FUTURE. >> JUSTICE KAVANAUGH. JUSTICE JUSTICE -- KAVANAUGH: ASSUME STANDING FOR PURPOSES OF THESE QUESTIONS, AND ON THE MERITS, THE MANDATE IS CURRENTLY STRUCTURED SEEMS DIFFICULT TO JUSTIFY UNDER THE TAXING CLAUSE FOR THE REASON THAT IT DOES NOT RAISE REVENUE AMONG OTHERS, SO IT IS HARD TO CALL IT A TAX NOW AND YOU WERE INDICATING THAT YOU

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CANNOT JUSTIFIED UNDER THE COMMERCE CLAUSE BECAUSE FIVE JUSTICES SAID YOU COULD NOT. COULD YOU EXPLAIN YOUR NECESSARY AND PROPER ARGUMENT SO -- YOU WERE ON THAT. MR. VERRILLI: IT IS THE ONE THAT WE MADE IN OUR BRIEF, THAT CONGRESS -- THE WAY THAT THE LAW EXISTS NOW THAT CONGRESS HAS MAINTAINED THE STRUCTURE THAT EXISTED BEFORE THE ZEROING OUT OF THE TAX IN 2017, SUCH THAT SHOULD CONGRESS DECIDE IN THE FUTURE THAT IT NEEDS TO REIMPOSE A TAX THAT IT DOES NOT NEED

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TO ENGAGE IN WHOLESALE REWORKING OF THE LAW, IT CAN CHANGE THE NUMBER AGAIN. IN THAT RESPECT IT IS NOT ENTIRELY DIFFERENT. I AM NOT SAYING THIS -- IT IS THE SAME, BUT IT IS NOT ENTIRELY DIFFERENCE FROM TAX LAW, AND WE THINK THAT SUFFICES. EVEN IF THE COURT DISAGREES WITH US HERE, -- JUSTICE CAPITAL: LET US ASSUME -- JUSTICE KAVANAUGH: LET US ASSUME THAT I DO NOT AGREE WITH THAT AND WE GET TO SEVERABILITY, I TEND TO AGREE WITH YOU AND IT

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IS VERY -- IT IS A VERY STRAIGHTFORWARD CASE MEANING THAT WE WOULD EXERCISE THE MANDATE AND LEAVE THE REST IN PLACE READING OUR PRECEDENTS. ONE OF MY QUESTIONS AS DO YOU THINK THAT WOULD HAVE BEEN THE RIGHT RESULT UNDER THE 2010 ACT, OR DID THAT CHANGE IN 2017? OR HOW WOULD YOU ASSESS THAT? MR. VERRILLI: I THOUGHT THE AMICUS IN 2010 MADE STRONG ARGUMENTS IN FAVOR OF THAT RESULT, BUT I THINK THAT THE RELEVANT POINT OF INQUIRY WAS WHAT THE 2017 CONGRESS THINK, AND I THINK OR, WHAT WOULD THE

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LENGTH -- WHAT WITH THE 2017 CONGRESS HAVE PREFERRED, AND I THINK THAT THE OBJECTIVE ANSWER TO THAT IS CLEAR. THAT THE VERY SAME CONGRESS HAD ERODED OUT THE TAX AND, THEREFORE REMOVED ANY ECONOMIC INCENTIVE OR SUASION TO GET INSURANCE AND COULD NOT HAVE POSSIBLY THOUGHT THAT THE PROVISION CONTINUED TO BE ESSENTIAL TO THE OPERATION OF THE OVERALL SYSTEM. >> THANK YOU. JUSTICE BARRETT: IF THE COURT CONSTRUES A STATUTE IN A

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PARTICULAR WAY TO AVOID A CONSTITUTIONAL QUESTION, WHAT CONGRESS BE FREE TO COME BACK AND SAY NO, THAT IS WHAT WE MEANT AND IN THIS CASE FOR EXAMPLE, WE DID WANT TO RELY ON THE COMMERCE? WHY WOULD AN AVOIDANCE CONSTRUCTION OF A STATUTE LOCK CONGRESS AND? MR. VERRILLI: NEITHER AN AVOIDANCE CONSTRUCTION OR STRAIGHTFORWARD CONSTRUCTION WOULD LOCK CONGRESS AND, I AGREE WITH THAT. HERE I DO THINK THAT THE PRESUMPTION APPLIES EITHER WAY. ONCE THIS COURT IS EXTENDED --

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HAS DEFINITELY CONSTRUED A STATUTE, THAT IS WHAT IT MEANS. THE COURT ASSUMES THAT CONGRESS TAKES THAT AS A GIVEN, AND CAN RELY ON THAT CONSTRUCTION BY THE COURT WHEN IT MENDS THE STATUTE, AND ABSENT CLEAR EVIDENCE, WANTS TO DEPART FROM THE DEFINITIVE CONSTRUCTION AND THE PRESUMPTION IS THAT DECONSTRUCTION CONSTRUCTION STAYS IN PLACE. I THINK THAT HAS TO BE THE CASE BECAUSE THE ONLY WAY TO MAKE SENSE OF WHAT CONGRESS WAS DOING AND WHAT EVERYBODY INVOLVED SAID CONGRESS WAS DOING WAS THAT THEY ASSUMES THAT THE CHOICE CREATING

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STRUCTURE THAT WAS THE DEFINITIVE STRUCTURE OF THE ACT REMAINED, AND BY ZEROING OUT THE TAX THEY RELIEVED ANY PERCEIVED NEED BY ANYONE TO PURCHASE INSURANCE THAT THEY DID NOT WANT THAT IS WHAT EVERYBODY WAS SAYING. JUSTICE BARRETT: WHEN CONGRESS ZEROED OUT THE TAXES NO LONGER GENERATED REVENUE AND THEN IT COULD NO LONGER BE JUSTIFIED UNDER A TAXING POWER, SO CONGRESS SAID IT WAS A MANDATE. MR. VERRILLI: I THINK FOR THE REASONS I SAID, AND I DO THINK

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THE STATEMENTS BY THE LEGISLATURE, LEGISLATORS AND THE PRESIDENT AND EVERYONE ELSE, AND I KNOW ITS LEGISLATIVE HISTORY AND A SENSE, BUT I KNOW THERE IS WIDE AGREEMENT THAT THOSE KIND OF STATEMENTS CAN BE LOOKED TO AS EVIDENCE AS THE MEANING THAT A PROVISION IS CAPABLE OF BEARING. IT IS CLEARLY CAPABLE OF BEARING THE MEANING THAT WE HAVE IDENTIFIED, AND IT SEEMS LIKE THE ONLY EXPLANATION FOR WHAT CONGRESS DID HERE IS THAT THEY ASSUMED THAT THAT WAS ITS MEANING IF THEY HAD ASSUMED THE OPPOSITE AND WANTED TO IMPOSE A

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COMMAND, I AM SURE THAT SOMEBODY WOULD'VE SAID THAT AND EVERYONE SAID THE OPPOSITE. >> ONE MINUTE TO WRAP UP. THANK YOU. MR. VERRILLI: THE AFFORDABLE CARE ACT HAS BEEN THE LAW OF THE LAND FOR 10 YEARS. THE HEALTH CARE SECTOR HAS SHAPED ITSELF OR RELIANCE ON THE LAW. TENS OF MILLIONS OF AMERICANS RELY ON IT FOR HEALTH INSURANCE THAT THEY COULD NOT AFFORD. TO ASSUME THAT CONGRESS PUT ALL OF THAT AT RISK WHEN IT AMENDED THE LAW IN 2017 IS TO ATTRIBUTE TO CONGRESS A RECKLESSNESS THAT IS WITHOUT FOUNDATION IN REALITY AND JURISPRUDENTIAL HE INAPPROPRIATE.

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IN TRUTH -- IN VIEW OF ALL THAT HAS TRANSPIRED, THE LITIGATION BEFORE THIS COURT, BATTLES IN CONGRESS AND PROFOUND CHANGES IN OUR HEALTH CARE SYSTEM, ONLY AN EXTRAORDINARILY COMPELLING REASON COULD JUSTIFIED TRADITIONAL INVALIDATION OF THIS LAW AT THIS LATE DATE. THE RESPONDENT'S ARGUMENTS ARE ANYTHING BUT, THEY SHOULD BE REJECTED. THANK YOU. CHIEF JUSTICE ROBERTS THANK YOU. >> THANK YOU, AND MAY IT PLEASE THE COURT, IT SHOULD BE RESOLVED ON THE BASIS OF THREE OPERATIVE PROVISIONS THAT APPEAR IN THE U.S. CODE TODAY.

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THE FIRST IS THE INDIVIDUAL MANDATE WHICH IS A COMMAND TO THE AMERICAN PEOPLE TO PURCHASE HEALTH INSURANCE THAT THE FEDERAL GOVERNMENT DEEMS SUITABLE. THE SECOND IS A PENALTY PROVISION THAT ENSURES THAT THE MANDATE RAISES NO REVENUE FOR THE FEDERAL GOVERNMENT. THE THIRD IS A LEGISLATIVE FINDING ENSHRINED IN THE TEXT OF THE LAW ITSELF DECLARING THE MANDATE ESSENTIAL TO THE OPERATION OF THE MARKETPLACE REFORMS THAT THE ACA SET OUT TO ACHIEVE. THE OBAMA ADMINISTRATION'S DEPARTMENT OF JUSTICE DESCRIBED THE FINDING AS A FUNCTIONAL IN SEVERABILITY CLAUSE.

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THE MANDATE AS IT EXISTS TODAY IS UNCONSTITUTIONAL. IT IS A NAKED COMMAND TO PURCHASE HEALTH INSURANCE AND, AS SUCH, IT FALLS OUTSIDE OF CONGRESS' POWERS AND THE LEGISLATIVE FINDINGS DECLARING IT ESSENTIAL REQUIRE THIS COURT TO CONCLUDE AS DID THE DISTRICT COURT BELOW AND THE JOINT DISSENT THAT THE MANDATE IS INSEPARABLE FROM THE REMAINDER -- INSEVERABILITY FROM THE REMAINDER OF THE LAW. PETITIONERS ARE ASKING THE COURT TO IGNORE STATUTORY PROVISIONS IN THE U.S. CODE.

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PETITIONERS PREFER TO HYPOTHESIZE ABOUT WHAT VARIOUS LEGISLATORS I'D HAVE BEEN THINKING WHEN THEY VOTED TO ELIMINATE THE PENALTY PROVISION AND MAINTAIN THE MANDATE AND LEGISLATIVE FINDINGS. THAT IS JUST AN ARGUMENT THAT THIS COURT SHOULD SET ASIDE THE TEXT OF THE LAW IN FAVOR OF NON-TEXTUAL CONSIDERATIONS. THAT GETS THINGS BACKWARDS AS THIS COURT HAS CONFIRMED TIME AND AGAIN. THERE IS NO BASIS TO IGNORE THE WORDS THAT CONGRESS ENACTED AND THAT REMAIN OPERATIVE TODAY. THE PROPER COURSES TO TAKE CONGRESS AT ITS WORD AND DECLARE THE MANDATE UNCONSTITUTIONAL AND

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INSEPARABLE FROM THE REMAINDER OF THE ACA. CHIEF JUSTICE ROBERTS: ON THE SEVERANCE QUESTION I THINK IT IS HARD TO ARGUE THAT CONGRESS INTENDED THE ENTIRE ACT TO FALL WITH THE MANDATE IF IT WERE STRUCK DOWN WHEN THE SAME CONGRESS THAT LOWERED THE PENALTY TO ZERO DID NOT EVEN TRY TO REPEAL THE REST OF THE ACT, I THINK, FRANKLY THAT THEY WANTED THE COURTS TO DO THAT, BUT THAT IS NOT OUR JOB. MR. HAWKINS: MR. CHIEF JUSTICE I WOULD SUBMIT THAT IT IS THE

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COURT'S JOB TO FOLLOW THE TEXT OF THE LAW AS WRITTEN AND I THINK IT IS CRITICAL THAT IN 2000 17, CONGRESS COULD HAVE EXCISED THE LEGISLATIVE FINDINGS IN 18 ZERO 91,, BUT HE CHOSE NOT TO DO SO. CHIEF JUSTICE ROBERTS: I AGREE WITH YOU ABOUT OUR JOB INTERPRETING THE STATUTE. UNDER THE SEVERABILITY QUESTION WE ASK OURSELVES WHETHER CONGRESS WOULD WANT THE REST OF THE LAW TO SURVIVE IF AN UNCONSTITUTIONAL PROVISION WERE SEVERED. HERE CONGRESS LEFT THE LOT

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INTACT WHEN IT LOWERED THE PENALTIES TO ZERO. THAT SEEMS TO BE COMPELLING EVIDENCE ON THE QUESTION. MR. HAWKINS: I DON'T THINK SO, MR. CHIEF JUSTICE. ONE REASONABLE READING IS THAT CONGRESS WANTED TO GIVE THE AMERICAN PEOPLE A TAX CUT. IT WENT THROUGH LOTS OF PROVISIONS OF THE INTERNAL REVENUE CODE, CUTTING TAXES. ONE PLACE IT FOUND GIVE PEOPLE A TAX CUT WAS IN 5000AC, BUT WANTED TO KEEP THE MANDATE IN PLACE BECAUSE THE MANDATE WOULD STILL DRIVE PEOPLE TO ACQUIRE INSURANCE. IT WOULD HAVE BEEN QUITE

01:00:22

REASONABLE FOR CONGRESS TO CONCLUDE SIMPLY HAVING A MANDATE WILL LEAD PEOPLE TO SIGN UP FOR HEALTH INSURANCE. AS ORIGINALLY ENACTED, THE AFFORDABLE CARE ACT INCLUDED GROUPS OF PEOPLE WHO WERE SUBJECT TO THE MANDATE BUT EXEMPT FROM THE PENALTIES, INCLUDING THE VERY POOR AND MEMBERS OF INDIAN TRIBES. THAT'S AN INDICATION CONGRESS BELIEVED SIMPLY ORDERING PEOPLE TO DO SOMETHING WOULD GET THEM TO DO IT, NOTWITHSTANDING ANY PENALTY ATTACHED. CHIEF JUSTICE ROBERTS: YOU TALKED ABOUT THE FINDINGS IN THE

01:00:57

LEGISLATION AND TREAT THEM AS IF THEY WERE IN SEVERABILITY CLAUSE. IT DOES NOT LOOK LIKE ANY ININ SEVERABILITY -- COLOSTOMY. -- CLAUSE TO ME. MR. HAWKINS: WHAT WE SEE IN 18 091 IS A REPEATED EMPHASIS I CONGRESS THAT THE MANDATE IS ESSENTIAL TO WHAT THEY WERE SEEKING TO ACCOMPLISH. THIS IS NOT SOME FLEETING REFERENCE IN ONE PROVISION. IN SUBSECTIONS H, I, AND J WE SEE OVER AGAIN --

01:01:35

>> JUSTICE THOMAS. JUSTICE THOMAS: GENERAL HAWKINS, WE ARE SHADOWBOXING A BIT HERE. THE INDIVIDUAL MANDATE NOW HAS NO ENFORCEMENT MECHANISM. SO IT IS REALLY HARD TO DETERMINE EXACTLY WHAT THE THREAT IS OF AN ACTION AGAINST IT. CAN YOU COMMENT ON THAT A BIT? GIVE US AN UNDERSTANDING OF WHAT YOUR INJURY IS. MR. HAWKINS: SURE, JUSTICE THOMAS.

01:02:11

WE HAVE OFFERED SEVEN DIFFERENT BASIS TO CONCLUDE THE STANDING REQUIREMENT OF ARTICLE III IS SATISFIED. THE EASIEST PATH IS THROUGH THE INJURY THAT THE STATES HAVE SUFFERED, IN PARTICULAR THE CBO CONFIRMED IN 2008 AND 2017 THAT REQUIRING PEOPLE TO SIGN UP FOR HEALTH INSURANCE WITH LEAD PEOPLE TO DO SO. IT IS REASONABLY LIKELY BASED ON THAT PEOPLE WILL SIGN UP FOR MEDICAID WHO OTHERWISE WOULD NOT HAVE DONE SO BECAUSE OF THE COMMAND TO DO SO.

01:02:49

GENERAL MONGAN SUGGESTED WE NOT PUT ON EVIDENCE OF THAT AND I SUSPECT FULLY -- RESPECTFULLY DISAGREE. IN THE CBO REPORTS THE INDIVIDUAL AFFIDAVITS THEMSELVES ON PAGES 73, 76, AND 77 CONFIRMED INDIVIDUALS WILL SIGN UP BASED ON A COMMAND TO DO SO. THERE ARE NUMEROUS STATE AFFIDAVITS, INCLUDING MISSISSIPPI, MISSOURI, SOUTH DAKOTA TALKING ABOUT COSTS IMPOSED BY THE MANDATE ON THE STATES. WE SEE THE INCREASED MEDICAID ENROLLMENT SET OUT. PAGE 91 OF THE JOINT APPENDIX, THE WISCONSIN AFFIDAVIT.

01:03:27

WE SUBMIT UNDER DEPARTMENT OF COMMERCE VERSUS NEW YORK, THAT IS MORE THAN ENOUGH TO CONCLUDE THERE IS A SUBSTANTIAL LIKELIHOOD OF AT LEAST ONE PERSON SIGNING UP FOR A STATE MEDICAID PROGRAM WHICH WOULD CAUSE AT LEAST ONE DOLLAR OF INJURY AND SATISFY THE STANDING REQUIREMENT. THAT IS OUR FIRST OF SEVEN THEORIES. I AM HAPPY TO GO THROUGH MORE. JUSTICE THOMAS: AT WHAT STAGE WOULD YOU DETERMINE IN SEVERABILITY? THERE IS A LOT OF TALK WE SHOULD

01:04:01

CONSIDER AT THE STANDING STAGE. I THINK OF STATUTORY CONSTRUCTION AND SOMETHING MORE SUITABLE FOR THE MERIT STAGE. I WOULD LIKE YOUR COMMENT ON THAT. MR. HAWKINS: WE THINK THIS COURT DESCRIBE THE INSEVERABILITY ANALYSIS AS PART OF THE REMEDIAL ANALYSIS. WE SUBMIT THE PROPER COURSE HERE IS TO CONCLUDE AT LEAST ONE PLAINTIFF HAS STANDING FOR ANY OF THE REASONS WE PUT FORWARD, AND TO CONCLUDE THE MANDATE IS UNCONSTITUTIONAL. UPON DOING SO WE WOULD SUBMIT THAT IS WHEN THE SEVERABILITY

01:04:38

ANALYSIS COMES INTO PLAY. >> JUSTICE BREYER. JUSTICE BREYER: TURNING TO THE MERITS, WHAT DO YOU SAY ABOUT MANY STATUTES I SUSPECT THAT DO HAVE OR COULD HAVE STATEMENTS DO THIS OR DON'T DO THAT AND THEY DO NOT HAVE ANY ENFORCEMENT? WORLD WAR I. DEFENSE STATUTE. BUY WAR BONDS. ENVIRONMENTAL STATUTE. PLANT A TREE.

01:05:16

ONE OF 1000 STATUTES COMMEMORATING SOMETHING. BEAUTIFUL CITIES DAY. CLEAN UP THE YARD. I MEAN I CAN RECALL I BELIEVE DOZENS AND DOZENS OF STATUTES WERE CONGRESS SAYS SOMETHING WERE NORMALLY WE WOULD SAY IT IS -- ARE ALL THE STATUTES SUDDENLY OPEN TO CHALLENGE? I MEAN ARE NONE OF THEM? IF SO, YOU LOSE. IF IT IS IN BETWEEN, WHICH ONES ARE AND WHICH ONES AREN'T? MR. HAWKINS: JUSTICE BREYER, YOU

01:05:51

ASKED IF THEY ARE OPEN TO CHALLENGE. I GUESS I WOULD WANT TO KNOW -- JUSTICE BREYER: ON THE MERITS. IF YOU HAVE A MERIT CLAIM, CAN YOU SUDDENLY SAY THIS IS NO GOOD BECAUSE PEOPLE WILL DO IT? THEY WILL BUY WAR BONDS. THEY WILL PLANT A TREE. AT LEAST ONE OF THEM WILL CLEAN UP THE FRONT YARD. OK. AND THEREBY -- IT IS A MERITS POINT. MR. HAWKINS: I GUESS I WOULD WANT TO LOOK AT THE PARTICULAR STATUTE. WE KNOW FROM NFIB THE GOVERNMENT CANNOT ORDER PEOPLE TO ENTER COMMERCE.

01:06:29

PEOPLE WHO ARE NOT ALREADY IN COMMERCE. IF ANOTHER STATUTE IS LIKE THAT, I THINK NFIB -- JUSTICE BREYER: YOU ARE MISSING THE POINT. ON EACH OF THEM THERE IS SOME CONSTITUTIONAL ARGUMENT THAT IF THERE WERE A PENALTY ATTACHED, IT WOULD BE UNCONSTITUTIONAL. THEY TAKE THE PENALTY OUT. NOW NO PENALTY. DO YOU SAY THAT THEY ARE NONETHELESS UNCONSTITUTIONAL FOR WHATEVER REASON? IF SO, I THINK THERE WILL BE AN AWFUL LOT OF LANGUAGE AND AN

01:07:03

AWFUL LOT OF STATUTES THAT WILL SUDDENLY BE THE SUBJECT OF COURT CONSTITUTIONAL CHALLENGE. MR. HAWKINS: JUSTICE BREYER, WE DON'T DISPUTE INHERENT IN THE NATURE OF SOVEREIGNTY IS THE POWER FOR THE GOVERNMENT TO SPEAK. WE DON'T CHALLENGE THE IDEA OF TRULY AUDITORY STATEMENTS OR CONGRESS GIVING SUGGESTIONS OR RECOMMENDATIONS. IF THE STATUTES CAN BE READ THAT WAY, THAT MIGHT CHANGE MY ANSWER. WHAT WE HAVE HERE, AND I THINK THIS IS THE CRITICAL DIFFERENCE, IS NOT SOME SUGGESTION OR AUDITORY STATEMENT. IT IS THE LAW OF THE UNITED STATES OF AMERICA TODAY THAT YOU

01:07:39

HAVE TO PURCHASE HEALTH INSURANCE. NOT JUST ANY HEALTH INSURANCE. HEALTH INSURANCE THE FEDERAL GOVERNMENT DECIDED WOULD BE BEST FOR YOU. THAT IS CERTAINLY SUBJECT TO CHALLENGE. JUSTICE BREYER: THANK YOU. >> JUSTICE ALITO. JUSTICE ALITO: I HOPE FOR TWO QUICK QUESTIONS ABOUT YOUR THEORIES OF STANDING. FIRST TEST OF INCREASED MEDICAID COSTS, BECAUSE YOU ARE REQUIRED TO CALCULATE ELIGIBILITY BASED ON MODIFIED ADJUSTMENT INCOME. WHAT WOULD HAPPEN IF YOU DIDN'T DO THAT?

01:08:16

MR. HAWKINS: WE DON'T KNOW FOR CERTAIN BECAUSE WE HAVE NOT TRIED. I BELIEVE THE FEDERAL GOVERNMENT COULD BRING SOME ACTION AGAINST US OR SOMEBODY WHO SHOULD BE ELIGIBLE FOR MEDICAID UNDER THE ACA BUT ISN'T BECAUSE OF THE WAY WE HAVE DONE THE REGULATIONS. I SUPPOSE THEY WOULD BE ABLE TO SUE US. JUSTICE ALITO: FULL THERE BE PENALTIES? DOES THE AFFORDABLE CARE ACT SET DOWN A PENALTY FOR FAMILIES WHO DO THAT? MR. HAWKINS: I DON'T KNOW OF A SPECIFIC PENALTY OR FINE LEVIED AGAINST THE STATE IN CONNECTION WITH A FAILURE TO COMPLY WITH THE MAGI REQUIREMENTS.

01:08:59

THERE IS IRS REPORTING AND OTHER THINGS LIKE THAT. JUSTICE ALITO: AS TO THE REPORTING REQUIREMENTS IN SECTION 6055 AND 6056, THE CONSEQUENCES FOR FAILURE TO COMPLY WITH THOSE I BELIEVE WOULD BE A PENALTY UNDER THE INTERNAL REVENUE CODE. WHICH THIS COURT HAS SAID IS A TAX FOR PURPOSES OF THE ANTI-INJUNCTION PACT. HOW COULD THAT THEORY OF STANDING SURVIVED THE

01:09:35

LIMITATIONS IMPOSED BY THE ANTI-INJUNCTION ACT? MR. HAWKINS: THE PROVISIONS IN 6065 AND 6056 FLOW FROM THE MANDATE AND ARE ECHOED IN IRS REGULATIONS. THE 2020 INSTRUCTIONS RELEASED RECENTLY SAY THE STATES HAVE TO PROVIDE THIS INFORMATION TO THE FEDERAL GOVERNMENT ABOUT HOW THEY ARE COVERING AS EMPLOYERS THEIR EMPLOYEES. THAT REPORTING REQUIREMENT ITSELF INFLICTS A POCKETBOOK INJURY ON THE STATES.

01:10:11

THOSE FORMS DON'T PRODUCE THEMSELVES. OUR THEORY IS THAT POCKETBOOK INJURY ITSELF IS ENOUGH TO SATISFY ARTICLE THREE. I DON'T THINK THAT POSES AN AIA PROBLEM. THOSE INJURIES, AS THE FIFTH CIRCUIT CORRECTLY HELD, FLOW FROM THE INDIVIDUAL MANDATE ITSELF THAT ARE TRACEABLE BACK TO THE MANDATE. JUSTICE ALITO: THANK YOU. >> JUSTICE SOTOMAYOR. JUSTICE SOTOMAYOR: COUNSEL, I WOULD LIKE TO UNDERSTAND THAT MORE, YOUR LAST STATEMENT. AS I UNDERSTOOD THE THEORY YOUR EXPLAINING EARLIER

01:10:46

UNDERSTANDING, YOU SAY THAT YOU ASSUME SOME PEOPLE WOULD COMPLY VOLUNTARILY WITH THE LEGAL COMMAND AT ISSUE HERE, THE INDIVIDUAL MANDATE. AS I UNDERSTAND IT, THE CBO REPORT PREDICTED ONLY A SMALL NUMBER OF PEOPLE WOULD DO THAT. THE EXACT OPPOSITE OF WHAT IT SAID IN 2009. BECAUSE OF A WILLINGNESS TO COMPLY WITH THE LAW. YOU HAVE TO TAKE IT A STEP FURTHER. YOU HAVE TO PROVE THAT SMALL

01:11:25

NUMBER WOULD INCLUDE PEOPLE WHO DID NOT ENROLL FOR MEDICAID AND DID NOT ENROLL FOR CHIPS WHEN IT WAS A LEGAL REQUIREMENT. AS A TAX. BUT THEY WOULD DO SO NOW AFTER THEY ARE TOLD THERE WAS NO PENALTY FOR IT. THERE IS NO TAX FOR IT. AT SOME POINT COMMON WOULD SAY ,H -- SAY, HUH? THAT SMALL NUMBER HAS TO INCLUDE MEDICAID AND CHIP RECIPIENTS TO

01:12:02

AFFECT YOU AS A STATE AT A LL. ONCE THEY ARE TOLD THERE WAS NO TAX THEY WOULD ENROLL NOW WHEN THEY THOUGHT THERE WAS A TAX. DOES THAT MAKE SENSE TO YOU? MR. HAWKINS: IT DOES. I WOULD NOTE IN THAT CASE AS WELL WE WERE TALKING ABOUT A VERY SMALL NUMBER OF PEOPLE WHO WOULD UNLAWFULLY REFUSE TO RESPOND TO THE CENSUS IF IT INCLUDED A CITIZENSHIP QUESTION. THE STANDING THEORY IN THAT CASE WAS PREMISED ON ASSUMPTIONS ABOUT PEOPLE BREAKING THE LAW.

01:12:40

OUR THEORY IN THIS CASE, AT LEAST IN PART, IS PREDICATED ON ASSUMPTIONS ABOUT PEOPLE FOLLOWING THE LAW. JUSTICE SOTOMAYOR: YOUR THEORY ASSUMES PEOPLE ARE GOING TO PAY A TAX AND BREAK THE LAW BY NOT BUYING INSURANCE. BUT THEY WOULDN'T DO IT IF THE TAX WAS ZERO. THAT MAKES LESS SENSE. MOVING ON FROM THAT TO THE SUBSTANCE, OK? IN NFIB, WE SAID AT LEAST FOUR

01:13:15

TIMES BY MY COUNT INDIVIDUALS CANNOT BE COMPELLED TO BUY HEALTH INSURANCE UNDER THE COMMON -- COMMERCE CLAUSE. THEY COULD ONLY BE ASKED TO MAKE A CHOICE UNDER THE TAX CLAUSE. NOW THE INDIVIDUAL PLAINTIFFS HERE STILL BELIEVE THAT THERE IS A COMMAND CONTRARY TO WHAT NFIB SAID THAT THEY MUST BUY HEALTH INSURANCE. YOUR ONLY REMEDY WOULD BE TO SAY THAT PROVISION IS UNCONSTITUTIONAL UNDER THE COMMERCE CLAUSE. IT IS UNCONSTITUTIONAL UNDER THE

01:13:51

TAX CLAUSE. BUT I DON'T UNDERSTAND WHY YOU ARE ENTITLED TO GREATER RELIEF WHEN NFIB ONLY SAYS -- IT ALREADY SAYS IT IS UNCONSTITUTIONAL. WE CAN SAY IT IS UNCONSTITUTIONAL NOW. BUT YOU ARE ARGUING THAT SOMEHOW US SAYING IT A SECOND TIME WOULD CONVINCE CONGRESS THAT HE COULD COMMAND YOU TO DO SOMETHING THAT HE COULD NOT DO. HIS -- THAT IT COULD NOT DO. DOES THAT LOGIC MAKES SENSE?

01:14:26

MR. HAWKINS: IT DOES BASED ON THE TEXT OF THE LAW. THE COURT IN 2012 -- JUSTICE BREYER: -- JUSTICE SOTOMAYOR: WE SAID IN NFIB WE COULD NOT READ THE TEXT OF THE LAW THE WAY YOUR CLIENT WANT US TO BECAUSE IT WOULD BE UNCONSTITUTIONAL. MR. HAWKINS: IN 3A OF THE CHIEF JUSTICE'S OPINION, IT NOTES THE BEST READING OF THE INDIVIDUAL MANDATE IS AS A COMMAND TO PURCHASE HEALTH INSURANCE.

01:15:02

SUBSEQUENT PARTS 3B AND 3C, AN ALTERNATIVE READING WAS FAIRLY POSSIBLE. THAT IS WHAT IS MISSING TODAY. THERE IS NO BARELY PERMISSIBLE ALTERNATIVE READING OF THE LAW. THAT LEAVES US WITH THE 3A OF THE CHIEF JUSTICE'S OPINION THAT THE MEN IT IS READ AS A COMMAND TO PURCHASE HEALTH INSURANCE AND THAT IS UNCONSTITUTIONAL. THE TEXT OF THE LAW SAYS THE REMAINDER OF THE ACA CANNOT WORK WITHOUT THE INDIVIDUAL MANDATE. >> JUSTICE KAGAN. JUSTICE KAGAN: CONTINUING ON THE

01:15:38

MERIT, I'M NOT SURE I UNDERSTAND YOUR POSITION. IN NFIB, WE HELD THE ACA WAS NOT AN UNCONSTITUTIONAL COMMAND. THAT HAS TO BE THE STARTING POINT. SINCE THEN THERE HAS BEEN A CHANGE AND IN THIS CHANGE WERE CONGRESS REDUCE IS THE PENALTY TO ZERO, CONGRESS MADE THE LAW LESS COERCIVE. HOW DOES IT MAKE SENSE TO SAY WHAT WAS NOT AN UNCONSTITUTIONAL COMMAND BEFORE HAS BECOME AN UNCONSTITUTIONAL COMMAND NOW

01:16:14

GIVEN THE FAR LESSER DEGREE OF COERCION? MR. HAWKINS: JUSTICE KAGAN, I WOULD LIKE TO START WITH THE PREMISE OF YOUR QUESTION ABOUT NFIB. THAT HOLDING IS AN ALTERNATIVE READING OF THE STATUTE. A CONSTRUCTION PREDICATED ON THE FACT THAT THE TIME THE INDIVIDUAL MANDATE COULD POSSIBLY BE READ AS GLUED TOGETHER WITH THE PENALTY PROVISION -- JUSTICE KAGAN: IF I MIGHT INTERRUPT, THE HOLDING IS WHAT ALLOWS THE ACA TO REMAIN IN EXISTENCE ALL THIS TIME.

01:16:50

HOWEVER IT WAS IT WAS FOUR PLUS ONE SAID, THE ACA WAS NOT AN UNCONSTITUTIONAL COMMAND. MR. HAWKINS: WE WOULD SUBMIT THIS COURT IS NOT BOUND BY THAT HOLDING TODAY BECAUSE THE UNDERLYING PREDICATE OF THAT HOLDING IS NO LONGER IN THE UNITED STATES CODE TODAY. JUSTICE KAGAN: THE ONLY THING THAT CHANGED IS SOMETHING THAT MADE THE LAW LESS COERCIVE IS WHAT I'M SUGGESTING. IF YOU MAKE IT MORE LESS COERCIVE --

01:17:24

MR. HAWKINS: THE LAW WAS BEST READ AS A COMMAND AS 3A -- JUSTICE KAGAN: YOU ARE DISPUTING THE PREMISE OF WHAT WE HELD IN NFIB, WHICH HAS -- I DON'T THINK YOU CAN DISPUTE. 5000AE SAYS A CLASS OF PEOPLE, MOSTLY POOR PEOPLE, WHO ARE SUBJECT TO THE MANDATE. THOSE PEOPLE ARE SUBJECT TO THE MANDATE BUT NEVER HAD TO PAY ANYTHING. DO YOU THINK IN NFIB WHAT WE SHOULD HAVE CONCLUDED WAS THOSE

01:18:01

PEOPLE WERE SUBJECT TO A COMMAND WHERE EVERYONE US HAD A LAWFUL CHOICE? -- ELSE HAD A LAWFUL CHOICE? MR. HAWKINS: THE POOR AND PEOPLE OF INDIAN TRIBES, AT ANY POINT THEY BROUGHT AN AS APPLIED CHALLENGE, THEY WOULD HAVE BEEN A TALENTED -- ENTITLED TO PREVAIL. FROM DAY ONE CONGRESS HAS BEEN ORDERING THEM TO DO SOMETHING WHICH IS BEYOND CONGRESS'S COMMERCE POWER. JUSTICE KAGAN: ISN'T THAT BACKWARDS TO SAY THOSE PEOPLE WHO NEVER HAD TO PAY A CENT WERE SUBJECT TO A COMMAND WHEN PEOPLE

01:18:37

WHO DID HAVE TO PAY, WHO FELT THE COERCIVE POWER OF GOVERNMENT WERE NOT SUBJECT TO A COMMAND? MR. HAWKINS: THAT IS PART 3A OF THE CHIEF JUSTICE'S OPINION INDICATING THE MANDATE IS BEST READ AS A COMMAND. TO SOME PEOPLE, MANY PEOPLE, THE CONSTRUCTION WAS AVAILABLE AT THE TIME. IN 2017, CONGRESS EFFECTIVELY TOOK THESE SUBSECTION E EXEMPTIONS AND EXPANDED THEM TO EVERYONE. THERE IS NO TAX SAVINGS

01:19:10

CONSTRUCTION AVAILABLE AND WE ARE JUST LEFT WITH A COMMAND. >> JUSTICE GORSUCH. JUSTICE GORSUCH: I WOULD LIKE TO PICK UP ON THE MERITS. MR. HAWKINS, GOOD MORNING. AS I UNDERSTAND MR. VERRILLI, HIS ARGUMENT ON THE MERITS IS IT IS NECESSARY AND PROPER FOR THE TAXING POWER. THAT COERCIVE AUTHORITY IS STILL IN PLAY. IT IS JUST CONGRESS HAS CHOSEN TO SET IT AT ZERO AND ONCE THE FLEX ABILITY RETAINING THAT PROVISION IN LAW BECAUSE IT MIGHT CHOOSE LATER TO INCREASE

01:19:46

THE TAX AGAIN. WHAT DO YOU SAY TO THAT RESPONSE? MR. HAWKINS: I WOULD SAY TWO THINGS. NUMBER ONE, THIS CANNOT BE ATTACKS BECAUSE IT DOES NOT RAISE REVENUE FOR THE GOVERNMENT AND CANNOT RAISE REVENUE FOR THE GOVERNMENT. IN NFIB, THE COURT NOTED THAT THE ESSENTIAL FEATURE OF THE TAX IS RAISING REVENUE. MY SECOND RESPONSE IS THAT IF THE NECESSARY AND PROPER CLAUSE WERE TO SOMEHOW SAY THAT, THAT WOULD BE GIVING CONGRESS A POLICE POWER.

01:20:21

EVERYTHING IS POTENTIALLY A TAX. IF CONGRESS COULD JUSTIFY ANY LEGISLATION ON THE GROUNDS THAT MAYBE ONE DAY WE WILL IMPOSE A TAX, THEY WOULD BE NO FUNCTIONAL LIMIT ON ARTICLE ONE POWERS. JUSTICE GORSUCH: LET ME TURN TO THE REMEDIAL QUESTION WITH RESPECT TO THE INDIVIDUAL PLANS. THEY ASKED FOR DECLARATORY AND INJUNCTIVE RELIEF. I GUESS I GUESS I'M A LITTLE UNCLEAR. WHO EXACTLY DO THEY WANT ME TO ENJOIN THEM FROM DOING? MR. HAWKINS: THE DECLARATION, WHICH WAS COUNT ONE ON WHICH THE

01:20:58

DISTRICT COURT ENTERED PARTIAL FINAL JUSTNESS -- JUDGMENT. THE DEFENDANTS INCLUDE THE UNITED STATES, HHS, THE IRS AND THEIR RESPECTIVE COMMISSIONERS. THE JUDGMENT WOULD BE A DECLARATION THAT THE DEFENDANTS CANNOT -- EXHUMING, -- EXCUSE ME, THE INDIVIDUAL MANDATE IS AN UNLAWFUL AND INSEPARABLE INSEVERABILITY -- REMAINDER --AND INSEVERABILITY REMAINDER OF THE ACT. JUSTICE GORSUCH: WE NORMALLY

01:21:34

REQUIRE SOME PROOF WE CAN REMEDY OF A PLAINTIFF'S INJURY MORE CONCRETELY THAN A MERE DECLARATORY JUDGMENT. MR. HAWKINS: HERE I THINK THAT -- JUSTICE GORSUCH: AN INJUNCTION WOULD BE AVAILABLE IN THIS IS ANTICIPATION. MR. HAWKINS: TWO THINGS, JUST AS GORSUCH -- JUST AS GORSUCH. THE COURT INSISTED AN INJUNCTION WOULD NOT BE NECESSARY AND IT WOULD TREAT THE DECLARATION AS AN INJUNCTION AND WE TOOK THEM AT THEIR WORD. SECOND, IF THAT IS NOT GOOD ENOUGH, COUNT FIVE IS STILL

01:22:11

PENDING IN DISTRICT COURT. THAT IS OUR REQUEST FOR INJUNCTIVE RELIEF. THAT IS STILL A LIVE ISSUE BEFORE THE DISTRICT COURT AND WE CAN PURSUE THAT REMEDY IF NECESSARY. >> JUSTICE KAVANAUGH. JUSTICE KAVANAUGH: GOOD MORNING, GENERAL HAWKINS. ASSUME THERE IS STANDING. JUST ASSUME THAT. ON THE MERITS OF THE MANDATE BEFORE WE GET TO SEVERABILITY I WANT TO FOLLOW UP ON JUSTICE BREYER'S QUESTION. MY UNDERSTANDING MIGHT BE A LITTLE DIFFERENT FROM HIS ABOUT THE EXISTENCE OF OTHER LAWS. I THINK WHEN I ASKED GENERAL MONGAN, HE AGREED THERE ARE NO

01:22:48

EXAMPLES IN THE U.S. CODE THAT HE IS AWARE OF WHERE CONGRESS HAS ENACTED A TRUE MANDATE TO DO SOMETHING TO PURCHASE A GOOD OR SERVICE, A TRUE MANDATE WITH NO PENALTIES. IS THAT RIGHT? MR. HAWKINS: I THINK IT IS, JUSTICE KAVANAUGH. IT WOULD MAKE SENSE IF THAT WERE CORRECT. THE AFFORDABLE CARE ACT WAS AN UNPRECEDENTED STATUTE. I BELIEVE CONGRESS HAD NEVER TRIED TO DO WHAT IT DID HERE. MR. HAWKINS: WITH OUR WITHOUT PENALTIES? MR. HAWKINS: I BELIEVE --

01:23:25

JUSTICE KAVANAUGH: WITH OR WITHOUT PENALTIES. MR. HAWKINS: I BELIEVE THAT IS CORRECT. JUSTICE KAVANAUGH: I'M USING THE TERM MANDATE. I UNDERSTAND THE ARGUMENT ABOUT THAT TERM, BUT IT CANNOT BE JUSTIFIED UNDER THE COMMERCE OR TAX NECESSARY OR PROPER CLAUSE AS WE GET TO SEVERABILITY. LOOKING AT THE SEVERABILITY PRECEDENCE, IT SEEMS CLEAR THE PROPER REMEDY WOULD BE TO SEVER THE MANDATE PROVISION AND LEAVE THE REST OF THE ACT IN PLACE REGARDING PRE-EXISTING CONDITIONS AND THE REST. THE QUESTION TO YOU OBVIOUSLY IS

01:24:04

HOW DO YOU GET AROUND THE PRECEDENCE ON SEVERABILITY WHICH SEEM ON POINT HERE? MR. HAWKINS: I GET AROUND THEM BY RELYING ON THE TEXT OF THE STATUTE. AAPC RECOGNIZED NON-SEVERABILITY CLAUSES CAN BE STATEMENT OF CONGRESSIONAL INTENT. THE OBAMA ADMINISTRATION'S DEPARTMENT OF JUSTICE REFERRED 18091 AS A FUNCTIONAL INSEVERABILITY CLAUSE. WE HAVE MULTIPLE INSTANCES OF CONGRESS --

01:24:39

JUSTICE KAVANAUGH: SORRY TO INTERRUPT. INSEVERABILITY CLAUSES USUALLY ARE VERY CLEAR. WE DID INDICATE WHAT THEY LOOK LIKE AND RECITED AN EXAMPLE OF WHAT THEY LOOK LIKE -- AND WE CITED AN EXAMPLE OF WHAT THEY LOOK LIKE. CONGRESS KNOWS HOW TO WRITE AN INSEVERABILITY CLAUSE. THAT IS NOT THE LANGUAGE THEY CHOSE HERE. I AGREE ABOUT FOCUSING ON THE TEXT, BUT I'M HAVING TROUBLE SEEING THAT IS THE EQUIVALENT OF AN INSEVERABILITY CLAUSE.

01:25:15

MR. HAWKINS: THAT WOULD ELEVATE FORM OVER SUBSTANCE. WE SEE THE MANDATE IS ESSENTIAL TO THE LARGE REGULATION OF ECONOMIC ACTIVITY. SUBSECTION I CREATES A HEALTHY MARKET -- HEALTH INSURANCE MARKET, AND THE SAME IN SUBSECTION J. THIS IS CONGRESS SAYING THE MANDATE IS ESSENTIAL TO THE OPERATION OF THE LAW. I DON'T BELIEVE THERE IS ANY SERIOUS ARGUMENT THAT CONGRESS WOULD HAVE ENACTED THE ACA IN 2010 BUT FOR THE INDIVIDUAL MANDATE OR WITHOUT THE INDIVIDUAL MANDATE. JUSTICE KAVANAUGH: THEY DID SOMETHING TO THAT EFFECT IN 2017 HOWEVER.

01:25:51

MR. HAWKINS: IN 2017, THEY GAVE THE AMERICAN PEOPLE A TAX CUT BUT THEY WANTED EVIDENTLY TO CONTINUE ORDERING PEOPLE TO ACQUIRE HEALTH INSURANCE AND THEY LEFT IN PLACE THE FINDING SAYING THAT THE REQUIREMENT IS ESSENTIAL. JUSTICE KAVANAUGH: IN 2017, DO YOU READ CONGRESS IS HAVING WANTING TO PRESERVE PROTECTION FOR COVERS FOR PEOPLE WITH PRE-EXISTING CONDITIONS? IT SURE SEEMS THAT WAY FROM THE RECORD AND THE TEXT. MR. HAWKINS: YOUR HONOR, WE

01:26:26

SUBMIT THE BEST APPROACH IS TO LOOK AT WHAT IS IN THE UNITED STATES CODE RATHER THAN GETTING INTO THE GAME OF WHAT DIFFERENT LEGISLATORS MIGHT HAVE BEEN THINKING AND SAYING IN SPEECHES AND ALL THAT. INDEED, CONGRESS COULD HAVE EXCISED THESE FINDINGS. WE HAVE SEEN CONGRESS AMID LEGISLATIVE FINDINGS BEFORE IN CASES LIKE LOPEZ WHERE CONGRESS AMENDED HIS FINDINGS. IT IS TELLING THAT CONGRESS DID NOT DO THAT HERE. >> JUSTICE BARRETT. JUSTICE BARRETT: I WANT TO GO BACK TO JUSTICE GORSUCH'S QUESTION ABOUT STANDING FOR THE INDIVIDUAL PLAINTIFF.

01:27:03

LET'S SAY WE AGREE WITH YOU THAT THE MANDATE BY MAKING THEM FEEL COMPULSION TO PURCHASE INSURANCE IS CAUSING POCKETBOOK INJURY. WHY IS THAT TRACEABLE TO THE DEFENDANT THE INDIVIDUALS HAVE SUED HERE? IT IS TRACEABLE TO OR CAUSED BY THE MANDATE ITSELF, BUT HOW WAS IT TRACEABLE TO THE IRS OR TO HHS? WHY IS THERE ACTION INFLICTING INJURY? MR. HAWKINS JUSTICE BARRETT, WE HAVE SUED FIVE DEFENDANTS INCLUDING THE UNITED STATES AND APPLIED A LONG-STANDING

01:27:40

PRESUMPTION THAT THE FEDERAL GOVERNMENT ACTS IN GOOD FAITH. BY SUING THE FIVE DEFENDANTS WHO WE HAVE SUED HERE, I THINK THAT IS THE BEST WAY OF ENSURING THE INDIVIDUAL PLAINTIFFS' INJURIES FROM THE INDIVIDUAL MANDATE AND THE OTHER PARTS OF THE ACA THAT INTERACT WITH THE INDIVIDUAL MANDATE WILL BE FULLY REMEDIED. JUSTICE BARRETT: DOESN'T IT SEEM THAT CONGRESS IS THE ONE WHO INJURED THE INDIVIDUAL PLAINTIFFS? YOU CANNOT SUE CONGRESS. MR. HAWKINS: WE HAVE SUED THE UNITED STATES.

01:28:15

IT IS THE UNITED STATES'S LAW THAT THE PLAINTIFF HAVE TO REQUIRE HEALTH INSURANCE THE UNITED STATES THINKS IS GOOD FOR THEM. JUSTICE BARRETT: LET ME TALK ABOUT STATE SPENDING. THERE IS CONFUSION -- IT IS MY CONFUSION BASED ON DIFFERENT POSITIONS TAKEN IN THE BRIEF ABOUT THESE 1095B AND C STATEMENTS. THE HOUSE SAYS THE STATES WOULD HAVE TO ISSUE THEM REGARDLESS WHETHER THE MANDATE IS INTACT IN A STATUTE OR NOT, BUT STATES POINT TO THE PRODUCING COSTS OF

01:28:51

MAILING FORMS AND SENDING THEM OUT AS PART OF THEIR POCKETBOOK INJURY. WHO IS RIGHT? MR. HAWKINS: THEY ARE CORRECT THAT 6055 AND 6056 ARE INDEPENDENT THE ON THE BOOKS. DIFFICULT WERE TO APPLY THE LONG-STANDING PRESUMPTION OF THE FEDERAL GOVERNMENT WILL OPERATE IN GOOD FAITH AND RESPECT THIS COURT'S JUDGMENT, IT IS REASONABLY LIKELY A DECLARATION FROM THIS COURT THAT THE MANDATE IS UNLAWFUL WOULD PROMPT THE FEDERAL GOVERNMENT TO IN ANY WAY REDUCE THE ADMINISTRATIVE BURDEN

01:29:24

THAT THE PAPERWORK CAUSES, INCLUDING GOING THROUGH AND SAYING WHO HAD WHAT KIND OF COVERAGE DURING WHICH MONTH. I THINK THAT IS ENOUGH TO SATISFY TRACEABILITY AND REGRESS ABILITY AS THE FIFTH CIRCUIT CONCLUDED. JUSTICE BARRETT: THANK YOU, COUNSEL. >> GENERAL HAWKINS, YOU CAN TAKE A COUPLE OF MINUTES TO WRAP UP. MR. HAWKINS: JUST A COUPLE OF POINTS. THE REGULATORY BURDEN IMPOSED TODAY BY THE IRS FORMS IS THE MOST STRAIGHTFORWARD WAY TO CONCLUDE THE STATES HAVE SUFFERED A POCKETBOOK INJURY. THE DEPARTMENT OF CONGRESS VERSUS NEW YORK CONFIRMS THE STATES SUFFER ANOTHER POCKETBOOK

01:30:02

INJURY AS A PREDICABLE CONSEQUENCE OF ORDERING PEOPLE TO SIGN UP FOR INSURANCE. ON SEVERABILITY, EVEN IF THE COURT IS DISINCLINED TO INVALIDATE EVERY PROVISION OF THE ACA, IT SHOULD ADD A MINIMUM THAT UNDER THE TEXT OF THE LAW THE MANDATE IS INSEVERABILITY FROM THE THREE LEGGED STOOL. PRACTICAL EFFECTS, WE RECOGNIZE THE INTERESTS AT STAKE IN THIS REGULATORY REGIME. THE DISTRICT COURT STAYED PARTIAL ADJUSTMENT -- JUDGMENT. THAT COULD BE EXTENDED FOR AN

01:30:36

APPROPRIATE TIME TO ALLOW THE STATES AND POLITICAL BRANCHES OF THE FEDERAL GOVERNMENT AN OPPORTUNITY TO ACCOMMODATE THOSE RELIANT HI RELIANT INTERESTS. CHIEF JUSTICE ROBERTS: GENERAL? >> MAY PLEASE THE COURT. THIS COURT PUSHES THE LINE BETWEEN THE CONGRESS DOES RATHER THAN IT WHAT IT MAY HAVE INTENDED TO DO. I'M CONGRESS LIMITED -- DELAMINATED THE SHARED RESPONSE ABILITY PAYMENT IT LEFT STANDING

01:31:13

THE FINDING THAT THE MANDATE WAS ESSENTIAL TO THE OPERATIONS OF OTHER PARTS OF THE ACT. THAT HAS LEGAL CONSEQUENCES WHETHER OR NOT THE MEMBERS OF CONGRESS FORESAW THEM. IT IS HOW THIS COURT SHOULD APPROACH THE ACA HERE. I WELCOME THE COURT'S QUESTIONS. CHIEF JUSTICE ROBERTS: YOUR THEORY OF STANDING IS THAT A PERSON WHO WAS NOT ACTUALLY INJURED BY PART OF THE LAW CAN CHALLENGE THAT PART OF THE LAW

01:31:45

AND THROUGH THAT TRIED TO STRIKE DOWN OTHER PARTS OF THE LAW THAT YOU CHALLENGE HIM, OR DO INJURE HIM. I THINK THAT EXPANDS STANDING DRAMATICALLY. JUST IN THIS ACCOLADE YOU WERE TALKING ABOUT MOST 1000 PAGES AND YOU WERE LETTING SOMEONE NOT INJURED BY THE PROVISION THAT NEEDS CHALLENGING TO ROAM AROUND TO THOSE 1000 PAGES AND PICK UP WHATEVER ONES HE WANTS TO ATTACK. MR. WALL: I THINK THE REASON

01:32:20

THERE ISN'T A MASSIVE LOOPHOLE IN THE REASON WE HAD NOT SEEN CLAIMS LIKE ALASKA AIRLINES IS BECAUSE ON ITS MERITS IT IS VERY RARE TO OVERCOME THE PRESUMPTION OF INSEVERABILITY. THESE CLAIMS GO OUT ON A -- THE THEORY, AND JUSTICE ALITO WAS PRESSING EARLIER, IF YOU IMAGINE A STATUTE THAT HAD A CLEARLY RACIAL DISCRIMINATORY PROVISION AND EXPRESSED INSEVERABILITY CLAUSE, THE THEORY OF THE OTHER SIDE IS PLAINTIFF'S REGULATED BY THAT STATUTE COULD NOT CHALLENGE

01:32:56

IT. THAT DOES NOT SEEM RIGHT OF US. THE PLAINTIFFS HAVE AN ARTICLE THREE INJURY. THEY WENT IN CERTAIN KINDS OF INSURANCE CLAIMS. CHIEF JUSTICE ROBERTS: IT IS A COMMON FEATURE OF STANDING THE RESULT IS PEOPLE CANNOT CHALLENGE PROVISIONS. IT IS AN IMPORTANT DOCTORATE. THE ONLY REASON WE HAVE THE AUTHORITY TO INTERPRET THE CONSTITUTION IS BECAUSE WE HAVE THE RESPONSIBILITY OF DECIDING ACTUAL CASES. THAT IS WHAT STANDING FILTERS OUT. MR. WALL: I AGREE WITH ALL OF THAT. THE PLAINTIFF HERE, PARAGRAPH 46 AND IN THEIR DECLARATION, THEY

01:33:34

SAY THEY ARE INJURED BECAUSE THEY WANT PLANS THEY HAD BEFORE THE ACA AND THEY CANNOT ATTAIN NOW BUT FOR THE ACA'S INSURANCE PROVISIONS. THAT IS A STRAIGHTFORWARD ARTICLE THREE INJURY. CHIEF JUSTICE ROBERTS: JUSTICE THOMAS. JUSTICE THOMAS: THANK YOU, MR. CHIEF JUSTICE. GENERAL WALL, I WOULD LIKE YOU TO DISCUSS AT WHAT STAGE WE SHOULD CONFRONT THE INSEVERABILITY ISSUE. THERE IS MUCH TALK WE SHOULD DO THAT AT THE STANDING STAGE. AS I HAVE SAID BEFORE, IT SEEMS

01:34:12

MORE LIKE A STATUTORY CONSTRUCTION ISSUE THAT YOU CONSIDER AT THE MERITS STAGE. WOULD YOU COMMENT ON THAT? MR. WALL: THE GOVERNMENT VIEW IS YOURS. MY FRIENDS ON THE OTHER SIDE TALK ABOUT STANDING INSEVERABILITY. THEY ARE DISTINCT THINGS. THE PLAINTIFFS WANT INSURANCE PLANS THEY CANNOT GET THAT THEY USED THAT HAVE BUT FOR THE ACA. THAT'S AN ARTICLE THREE INJURY. AN INJURY IN THE REAL WORLD TO THEM RIGHT NOW. THEY WANT DIFFERENT KINDS OF INSURANCE. ON THE MERIT, THEY HAVE ARGUMENTS ABOUT WHY THOSE PROVISIONS CANNOT BE ENFORCED AT GUNPOINT.

01:34:49

THE ARGUMENT IS THE PROVISIONS ARE TIED AS A MATTER OF STATUTORY INTERPRETATION TO THE MANDATE AND THE MANDATE IS UNCONSTITUTIONAL. THAT ARGUMENT MAY BE RIGHT OR WRONG ON THE MERITS BUT IT DOESN'T HAVE ANYTHING TO DO WITH STANDING. IT'S DISTINCT FROM THE STANDING INJURY. HE MOVED TO THE MERITS AND INSEVERABILITY. THE REASON THAT DOES NOT OPEN THE FLOODGATES IS BECAUSE IT IS RARE IN THE TEXT OF THE STATUTE. FOCUSING ON AAPC WILL PROVIDE THE EVIDENCE THAT WOULD ALLOW A PLAINTIFF TO OVERCOME THE

01:35:27

PRESUMPTION OF SEVERABILITY. PROVISIONS ARE SEVERABLE. IT DOESN'T HAPPEN TO BE TRUE HERE GIVEN THE UNIQUE WORDING OF THE STATUTE. JUSTICE THOMAS: THANK YOU. CHIEF JUSTICE ROBERTS: JUSTICE BREYER. JUSTICE BREYER: I THINK I HAVE A VERY DIFFERENT UNDERSTANDING THAN JUSTICE KAVANAUGH. WHAT I THOUGHT I HEARD SAID WAS THAT SOMEONE IN THE SOLICITOR GENERAL'S OFFICE READ THROUGH THE ENTIRE UNITED STATES CODE, WHICH MUST BE QUITE A JOB, AND DISCOVERED THERE IS NO PREFATORY LANGUAGE IN THE CODE.

01:36:04

THERE IS NOTHING IN THE CODE THAT SAYS SOMETHING LIKE BUY WAR BONDS ARE PLANTED TREE OR SOMETHING LIKE CLEAN YOUR YARD. IS THAT RIGHT? MR. WALL: THERE IS 20 OF PREFATORY LANGUAGE. JUSTICE BREYER: PRECATORY MEANS PERTAINING TO ENTREATY OR SUPPLICATION. HOW IS IT YOU KNOW THAT THIS MANDATE JUST BY ITSELF WITHOUT ANY PENALTY IS SOMETHING MORE

01:36:37

THAN A SUPPLICATION OR ENTREATY? MR. WALL: A COUPLE OF REASONS. IT SAYS YOU SHALL MAINTAIN MINIMUM COVERAGE, NOT ENCOURAGED TO DO SO. THE SECOND IS WHEN THE MAJORITY IN NFIB TURNED TO THE STATUTE, IT LOOKED AT NOT JUST SUBSECTIONS A AND B, BUT ALSO C, PAGE 562. WHEN IT IS LOOKING AT THE STATUTE AND ADOPTING CONSTRUCTION IT IS LOOKING AT ALL THREE PROVISIONS AND SAYING

01:37:13

IT HAS THIS ESSENTIAL FEATURE OF RAISING REVENUE. THAT IS WHAT ALLOWS US TO SAY SOMETHING IS MORE NATURALLY CONSTRUED AS A COMMAND AND READ IT AS A TAX. JUSTICE BREYER: YOU HAD SOMEONE WREATH THROUGH THE ENTIRE UNITED STATES CODE AND YOU DISCOVERED THERE IS NO PRECATORY LANGUAGE IN THAT CODE THAT USES THE WORD THAT USES THE WORD -- THAT USES THE WORD 'SHALL.' WE PASSED LOTS OF THINGS LIKE

01:37:49

NATIONAL PORK WEEKEND ALL KINDS OF STUFF. GORE SAID LET'S HAVE A CELEBRATION, OR THE NATION SHALL , BUT PLANTED TREE, ETC. BUT YOU HAVE READ TO THE U.S. CODE WERE SOME IN YOUR OFFICE HAS LEARNED THERE IS NO WORD 'SHALL'IN A PRECATORY PHASE? MR. WALL: I HAVE NOT READ THE ENTIRE CODE. JUSTICE BREYER: I HAVEN'T EITHER. MR. WALL: WE HAVE LOOKED AT THIS QUESTION. ALL THE PRECATORY PROVISIONS WHICH ANYONE HAS POINTED OUT THAT WE ARE AWARE SAY THE WORD SHOULD, NOT THAT YOU SHALL DO THESE THINGS.

01:38:26

MR. WALL: THE DIFFERENCE BETWEEN SHALL AND SHOULD, OK. THANK YOU. I WOULD ALSO POINT TO NOT JUST THE PASSAGE IN NFIB, BUT THE EXEMPTIONS. THERE ARE EXEMPTIONS FOR PEOPLE WITH RELIGIOUS EXEMPTIONS AND PRISONERS AND ILLEGAL ALIENS. IF IT IS A CHOICE CONFERRING PROVISION, THE CHOICE HE WOULD HAVE ANYWAY VIRTUE OF EXISTENCE, IT IS HARD TO EXPLAIN PUT THE EXEMPTION TO THAT MANDATE DOES. JUSTICE BREYER: HAVE I EVER SAID OR YOU EVER SAID TO SOMEONE IN YOUR FAMILY, YOU SHALL DO IT.

01:39:05

BUT THAT IS IN ENTREATY. FOUR SUPPLICATION --O OR A SUPPLICATION. HAVE YOU EVER HEARD THAT? MR. WALL: WHEN I TELL MY KIDS THEY SHALL DO THINGS, THAT'S A COMMAND BACKED BY A PENALTY. JUSTICE BREYER: THAT'S A MUCH MORE ORGANIZED FAMILY THAN MINE. CHIEF JUSTICE ROBERTS: JUSTICE ALITO. JUSTICE ALITO: PERHAPS THERE IS A DIFFERENCE BETWEEN A SUPPLICATION AND A TAX. ARE YOU AWARE OF ANY PROVISIONS

01:39:41

IN THE CODE IN WHICH CONGRESS HAS REPORTED TO USE ITS TAXING POWER TO SAY YOU MUST DO THIS? WE ARE GOING TO TAX IT AND SET THE TAX AT ZERO? MR. WALL: NO, JUSTICE ALITO. JUSTICE ALITO: THE FEATURE OF THIS CASE THAT HAS A STRANGE ASPECT IS THE CHANGE THAT OCCURRED IN THE UNDERSTANDING OF THE ROLE OF THE INDIVIDUAL MANDATE BETWEEN OUR FIRST AFFORDABLE CARE ACT CASE AND

01:40:18

TODAY. THE FIRST CASE THERE WAS STRONG REASON TO BELIEVE THE INDIVIDUAL MANDATE WAS LIKE A PART IN AN AIRPLANE THAT WAS ESSENTIAL TO KEEP THE PLANE FLYING. SO IF THAT PART WAS TAKEN OUT, THE PLANE WOULD CRASH. BUT NOW THE PART HAS BEEN TAKEN OUT AND THE PLANE HAS NOT CRASHED. IF WE WERE TO DO SIDE THIS CASE THE WAY YOU ADVOCATE, HOW WOULD WE EXPLAIN WHY THE INDIVIDUAL MANDATE IN ITS PRESENT FORM IS

01:40:55

ESSENTIAL TO THE OPERATION OF THE ACT? MR. WALL: I THINK A COUPLE OF THINGS. YES, OUR BASIC POSITION IS THE FINDING AND THE FINDINGS ARE THE FUNCTIONAL EQUIVALENT OF A TARGETED INSEVERABILITY CLAUSE. THE GOVERNMENT SAID THAT BACK IN NFIB. THE JOY DISSENTERS AGREED WITH THAT. IF THE COURT HAD INVALIDATED THE MANDATE, I THINK THERE IS GOOD REASON TO BELIEVE THE COURT WOULD HAVE AND SHOULD HAVE ALSO BEEN VALIDATED WITH IT GUARANTEED ISSUE AND COMMUNITY LEADING. THAT WAS THE MOST NATURAL WAY TO REDEFINING.

01:41:30

IF THAT WAS THE MOST NATURAL WAY TO READ THE FINDING BEFORE 2017, IT IS STILL THE MOST NATURAL READING. NOTHING ABOUT THE TEXT OF 2017 CHANGED. CONGRESS TODAY TARGETED THING IN 2017. IT SAID WE DON'T WANT PEOPLE TO HAVE TO MAKE THIS PAYMENT ANYMORE IF THEY DON'T WANT TO GET INSURANCE. YES, THAT WAS LESS COERCIVE IN A SENSE BUT MORE COERCIVE AND ANOTHER, WHICH IS NOW IT IS JUST A NAKED COMMAND. THEY DID NOT DISTURB THE FINDING. IF YOU LOOK AT ALL THESE THINGS FROM CBO REPORTS AND LEGISLATORS, YOU CAN DIVINE IN THE COLLECTIVE CONSCIOUSNESS OF

01:42:08

CONGRESS A JUDGMENT THAT THE FINDING. WAS NO LONGER CORRECT THEY DID NOT AMEND OR ALTER THE TEXT OF THE ACT. CHIEF JUSTICE ROBERTS: JUSTICE SOTOMAYOR. JUSTICE SOTOMAYOR: COUNSEL, DO YOU CONCEDE THAT CONGRESS HAS THE AUTHORITY TO ENACT TAXES WITH THE LATE START DATES? MR. WALL: YES. JUSTICE SOTOMAYOR: CAN CONGRESS ENACT TAXES THAT PHASE OUT SOME YEARS IN THE FUTURE? 10% THIS YEAR, 8% NEXT YEAR, GOING DOWN BY 2% UNTIL FIVE YEARS FROM NOW?

01:42:43

MR. WALL: ABSOLUTELY. JUSTICE SOTOMAYOR: AND, OK, YOU AGREE IN 2020 CONGRESS ENACTED THE SHARED RESPONSIBILITY PAYMENT, THE TAX, TO PHASE IN AND 2014 AND PHASE OUT IN 2009, THAT WOULD HAVE BEEN PERMISSIBLE, CORRECT? MR. WALL: YES. JUSTICE SOTOMAYOR: LET ME FINISH, COUNSEL. IF CONGRESS HAD IN THE TGCA THAT THE SHIP RESPONSIBLY

01:43:16

PAYMENT WOULD BE ZERO IN 2019 AND 2020 AND 2021, BUT WOULD PHASE BACK IN AS OF 2022, WITH EPIC CONSTITUTIONAL? -- WITH DEBBIE CONSTITUTIONAL? -- WOULD THAT CONSTITUTIONAL? MR. WALL: IT WOULD LOOK MORE LIKE A PENALTY.

01:43:52

JUSTICE SOTOMAYOR: IF CONGRESS HAD PROVIDED THE SHARED RESPONSIBILITY WOULD BE ZERO FOR THE FIRST THREE YEARS BUT WOULD START ABOUT A CERTAIN PERCENTAGE IN 2022, WITH DEBBIE CONSTITUTIONAL? -- WOULD THAT CONSTITUTIONAL? MR. WALL: YES. JUSTICE SOTOMAYOR: WHAT IS THE DIFFERENCE BETWEEN THAT AND A DECISION OFTEN MADE BY CONGRESS THAT FOR CERTAIN NUMBER OF YEARS

01:44:28

WHATEVER FINES, PENALTIES, TAXES WERE DUE, THAT WOULD NOT COLLECT? WE HAVE HAD CASES WHERE WE HAVE -- I THINK WE HAD A CASE JUST LAST YEAR WERE WAS GOING TO PAY A BONUS TO SOLDIERS AND SUSPENDED THAT BONUS FOR THREE YEARS AND THEN REAPPLIED IT LATER. WHAT IS THE DIFFERENCE BETWEEN THAT CONSTITUTIONALLY? IF CONGRESS HAS THE POWER CONSTITUTIONALLY TO DELAY, TO EXTINGUISH, TO RESTART, WHY IS

01:45:06

THIS ANY DIFFERENT? AT LEAST TWO CONGRESSES HAVE CHOSEN TO FORGO THE TAX, BUT ANOTHER CONGRESS HAS THE POWER NOT TO. MR. WALL: ALL THE OTHER PROVISIONS ARE WRITTEN NATURALLY. THEY SAY IF YOU DO A THING OR DON'T DO A THING, YOU MAKE A PAYMENT. THE REASON THIS IS DIFFERENT IS BECAUSE ONCE YOU ELIMINATE THE REVENUE RAISING FUNCTION, IT IS NOT NATURALLY WRITTEN LIKE A TAX. IT WAS NEVER NATURALLY SEEN AS A

01:45:41

TAX. WELL LET IT TO BE REASONABLY CONSTRUED AS A TAX WAS THE REVENUE RAISING FUNCTION. ONCE YOU CUT THAT OUT OF THE STATUTE IT NO LONGER READS LIKE ANY PROVISIONS THAT HAVE SUSPENDED OR DELAYED TAXES, AT LEAST VERY DIFFERENTLY IF YOU SET THEM SIDE-BY-SIDE. CHIEF JUSTICE ROBERTS: JUSTICE KAGAN. JUSTICE KAGAN: ASSUME FOR THE MOMENT I DON'T REALLY BUY YOUR STANDING THROUGH INSEVERABILITY THEORY, TELL ME WHAT YOUR VIEW IS ABOUT WHETHER THE STATES OR THE INDIVIDUAL TIPS HAVE STANDING HERE? MR. WALL: WE HAVE NOT TAKEN A

01:46:17

POSITION ON THAT. JUSTICE KAGAN: I KNOW YOU HAVEN'T, GENERAL. I AM ASKING YOU FOR ONE BECAUSE WE HAVE TO TAKE A POSITION ON IT. THINK OF THIS AS A ONE JUSTICE -- MR. WALL: I THINK JUSTICE BARRETT WAS ASKING DIFFICULT QUESTIONS ABOUT TRACEABILITY WITH RESPECT TO THE INDIVIDUAL IS FONDANTS -- RESPONDENTS. I THINK IT PAYS 22 OF TEXAS'S. IT IS 22 REPORTING ADMINISTERED

01:46:50

OF COSTS IN THE DIRECT ROLE AS AN EMPLOYER. I THINK THAT MIGHT BE ENOUGH TO GET THE STATES STANDING. I WANT TO EMPHASIZE THE UNITED STATES HAS NOT TAKEN A POSITION ON THAT. MR. WALL: THE UNITED STATES IS PRETTY PRETTY STINGY ABOUT STANDING LAW. IT SURPRISED ME THE WAY IT SURPRISED THE CHIEF JUSTICE THAT YOU WERE COMING IN HERE WITH A THEORY, WHICH TO MY MIND THREATENS TO KIND OF EXPLODE STANDING DOCTRINE. I WANT TO GO BACK TO THAT BECAUSE I WAS NOT SURE I UNDERSTOOD YOUR ANSWER TO THE CHIEF ESTES -- CHIEF JUSTICE. A LOT OF LEGISLATION IS IN THESE

01:47:28

HUGE PACKAGES. EVEN MORE THAN THE ACA. IT INVOLVED 1000 DIFFERENT SUBJECTS, OMNIBUS LEGISLATION. EVERYBODY POURS EVERYTHING AND THAT THEY CAN THINK OF. IT WOULD SEEM A BIG DEAL TO SAY IF YOU CAN POINT TO INJURY WITH RESPECT TO ONE PROVISION AND YOU CAN TALK SOME KIND OF INSEVERABILITY ARGUMENT, IT ALLOWS YOU TO CHALLENGE ANYTHING ELSE IN THE STATUTE. ISN'T THAT SOMETHING THE UNITED STATES SHOULD BE VERY WORRIED ABOUT? ISN'T IT SOMETHING THAT CUTS AGAINST ALL OF OUR DOCTRINE?

01:48:07

MR. WALL: WE WOULD BE WORRIED IF WE SAW THE FLOODGATES FOR GOING TO OPEN. ALASKA AIRLINES MORE THAN 30 YEARS AGO. PEOPLE HAVE BEEN ABLE TO BRING CLAIMS FOR A LONG TIME. THE REASON THEY DON'T IS THEY REALLY -- IT IS NOT A PROBLEM OF ARTICLE THREE STANDING. IT IS NOT THEY ARE NOT INJURED BY THE STATUTES. JUSTICE KAGAN: I JUST DON'T THINK THAT'S RIGHT. FOR MYSELF, THIS THEORY WAS NEW TO ME. I THINK IT WOULD BE NEW TO MANY PEOPLE. IT IS NOT SO HARD TO CONSTRUCT SOME -- ALL YOU HAVE TO DO IS PRESENT A THEORY OF

01:48:46

SEVERABILITY. YOU DON'T HAVE TO WIN ON THAT THEORY. IN ORDER TO MAKE THIS UNDER YOUR VIEW A PROPER ARTICLE THREE CLAIM. MR. WALL: JUSTICE KAGAN, THE COURT AS A MATTER OF AVOIDANCE CAN DO SEVERABILITY THROUGH MERITS. WE DON'T THINK IT SHOULD HEAR IT. IF THE THEORY OF INSEVERABILITY WERE WEAK, IT IS HARD TO OVERCOME THE PRESUMPTION OF SEVERABILITY. YOU DON'T SEE THE PLAINTIFF. THE OTHER FOR THE -- THE PROBLEM

01:49:22

FOR THE OTHER SIDE IS I THINK THE OTHER SIDE IS SAYING EVEN IF YOU HAVE EXPRESSED INSEVERABILITY AND AN OBVIOUS CONSTITUTIONAL PROBLEM LIKE RACIAL DISCRIMINATION, IT'S OBVIOUS IT IS A LEGAL MELODY. EVERYONE CANNOT CHALLENGE IT UNTIL SOMEBODY CAME ALONG WHO WAS RACIALLY DISCRIMINATED AGAINST. THE ARTICLE THREE STANDING MATTER -- CHIEF JUSTICE ROBERTS: JUSTICE GORSUCH. JUSTICE GORSUCH: I WOULD LIKE TO PICK UP WHERE WE LEFT OFF AND UNDERSTAND YOUR RESPONSE TO JUSTICE KAGAN AND HER CONCERN ABOUT OPENING THE FLOODGATES

01:49:58

HERE. MR. WALL: WE DON'T SEE THE PROBLEM. IT WILL BE HARD TO MAKE OUT AN INSEVERABILITY CLAIM THAT WILL GET YOU PASS THE MOTION IS WHY WE DON'T SEE PEOPLE WALKING IN AN CHALLENGING SINGLE PROVISIONS OF THE ON THAT THIS ACT -- OMNIBUS ACT. IT IS RARE TO HAVE AN INSEVERABILITY CLAUSE AND HAVE A FACTUAL FINDING THAT GOES TO THAT QUESTION THAT YOU ASK WHEN YOU'RE DOING SEVERABILITY.

01:50:32

NO ONE HAS POINTED TO ANY OTHER STATUTES. I UNDERSTAND THE SORT OF REACTION WE DON'T SEE THE SORT OF THEORY VERY OFTEN. I DON'T THINK THAT IS A FUNCTION OF ARTICLE THREE STANDING. THE PLAINTIFFS ARE INJURED. THEY WANT PLANS THEY CAN'T GET. IT'S A FUNCTION OF THE FACT THEIR ARGUMENT ON THE MERITS OR NOT THE TYPE OF ARGUMENT MOST PLAINTIFFS -- HARDLY ANY PLAINTIFFS ARE GOING TO BE ABLE TO MAKE PLAUSIBLY. CHIEF JUSTICE ROBERTS: JUSTICE KAVANAUGH. JUSTICE KAVANAUGH: GOOD MORNING, GENERAL WALL. JUSTICE BREYER RIGHTLY POINTS OUT U.S. CODE HAS A LOT OF PRECATORY LANGUAGE IN IT.

01:51:10

MY UNDERSTANDING CATCHES HIS ON THAT -- MATCHES HIS ON THAT POINT. TO THE EXTENT THE MANDATORY LANGUAGE HERE MIGHT BE DIFFERENT AND UNUSUAL, WHICH WAS MY QUESTION EARLIER. I THINK HIS QUESTION SUGGESTS WHY NOT JUST CONSTRUE THIS LINK WHICH IS BEING SIMILAR TO THOSE PRECATORY PROVISIONS THAT ARE STRONG ABOUT THE U.S. CODE, -- STREWN ABOUT THE U.S. CODE. CAN YOU RESPOND TO THAT?

01:51:44

MR. WALL: THE COURT IN NFIB SAID THE ESSENTIAL FEATURE THAT ALLOWS FOR THE CONSTRUCTION IS IT RAISES REVENUE. ONCE CONGRESS ELIMINATED THAT, I THINK THEY CUT OUT THE BASIS FOR THE SAVINGS INSTRUCTION AND YOU HAVE THE WORD "SHALL." IT IS THE MOST NATURALLY READ AS A COMMAND IN ALL THESE OTHER STATUTES. I THINK THE COURT WOULD HAVE TO EXTENT OR STRETCH NFIB FURTHER THAN THE COURT WENT. MR. WALL: WITH RESPECT TO THE -- JUSTICE KAVANAUGH: YOU MAKE A

01:52:22

FORCEFUL ARGUMENT IT IS NOT JUSTIFIED UNDER THE COMMERCE OR TAXING OR NECESSARY AND PROPER CLAUSE IS, AT LEAST AS CONSTRUED IN NFIB. I UNDERSTAND YOUR OPENING COMMENTS TO SAY THE FINDINGS IN THE ORIGINAL ACT ARE IN ESSENCE THE EQUIVALENT OF AN INSEVERABILITY CLAUSE. AS YOU KNOW, WE HAVE A STRONG BACKGROUND PRESUMPTION OF SEVERABILITY, WHICH REFLECTS A LONG-STANDING UNDERSTANDING OF HOW CONGRESS WORKS. OUR RESPECT FOR CONGRESS'S LEGISLATIVE ROLE IN ARTICLE ONE,

01:52:57

AND ESTABLISHES A CLEAR DEFAULT RULE OR FAIRLY CLEAR DEFAULT RULE AGAINST WHICH CONGRESS CAN LEGISLATE. CONGRESS KNOWS HOW TO WRITE AN INSEVERABILITY CLAUSE, BUT THIS LANGUAGE IS DIFFERENT FROM HOW THAT USUALLY LOOKS. I WANT TO GIVE YOU AN OPPORTUNITY TO RESPOND TO THAT. MR. WALL: EVERYONE AGREES THERE IS NO MAGIC WORD REQUIREMENT. THE FINDING SPEAKS TO THE QUESTION. THE REQUIREMENT IS COMMUNITY RATING. ONCE THAT TRIAD IS DOWN AND THE COURT -- IT IS HARD TO LIMIT IT TO THE TRIAD.

01:53:35

IT TAKES DOWN THE OTHER PIECES OF THE ACT. IT IS NOT WRITTEN IN THE WAY ONE NORMALLY SEES AN INSEVERABILITY CLAUSE, BUT SPEAKS DIRECTLY TO THE QUESTION THAT THE INSEVERABILITY CLAUSE IS MEANT TO ADDRESS. WHAT IS IN THE ACT THE MANDATE IS ESSENTIAL TO? THAT IS WHY I THINK THE GOVERNMENT ARGUED FALSELY IN NFIB IS THE SAME AS A TARGETED INSEVERABILITY CLAUSE. CHIEF JUSTICE ROBERTS: JUSTICE BARRETT. JUSTICE BARRETT: PETITIONERS POINTED OUT IF IN FACT CONGRESS

01:54:11

ZEROED THIS OUT AND MADE IT NO LONGER A TAX, THEY ARGUED CONGRESS WOULD HAVE DELIBERATELY DONE SOMETHING UNCONSTITUTIONAL BY GROUNDING THIS LANGUAGE IN ITS COMMERCE POWER. DO YOU THINK IT IS INDISPUTABLE THAT NFIB WOULD RENDER SUCH AN EXERCISE OF THE COMMERCE POWER UNCONSTITUTIONAL? I'M ASKING BECAUSE THEY ARE FIVE JUSTICES WHO THOUGHT THAT BUT IT WAS NOT A MAJORITY OPINION WHO SAID IT. MR. WALL: I DO THINK THERE IS A

01:54:45

PASSAGE IN PART 3C THAT DOES SAY IT CANNOT BE A PART OF THE COMMERCE CLAUSE. YES, I THINK IT IS CLEAR THAT NFIB, IF READ AS A COMMAND, IT IS NOT PERMISSIBLE UNDER THE COMMERCE CLAUSE. I DO THINK THE HOUSE OR CALIFORNIA IS DISAGREEMENT THAT. THEY DISAGREE ON HOW BEST TO READ IT. IT SAYS SHALL, BUT AT THAT POINT IT'S DIFFICULT TO MAKE SHALL DO THE WORK OF SHOULD. THAT IS MORE WORK THAN AVOIDANCE CAN DO. THAT LOOP WOULD BE OPEN TO THE

01:55:24

COURT IN EVERY CASE LIKELY PEASANT MORRISON. -- LOPEZ AND MORRISON. THE COURT TOOK THOSE COMMANDS IS WHAT THEY WERE. PEOPLE SHALL OR SHALL NOT DO SOMETHING. JUSTICE BARRETT: LET'S ASSUME I AGREE WITH YOU. DON'T YOU THINK THE PETITIONERS HAVE A POINT THAT IF, AS YOU SAY, NFIB WOULD SAY THE MANDATE WOULD BE UNCONSTITUTIONAL AS AN EXERCISE OF THE COMMERCE POWER AS OPPOSED TO THE TAXING POWER, IT IS ODD FOR US TO CONSTRUE THE STATUTE AS CONGRESS SAYING WE

01:56:00

WILL CHANGE THE STATUTE IN A WAY THAT WILL RENDER IT CONSTITUTIONAL OR THIS PROVISION IN A WAY THAT WILL RENDER IT UNCONSTITUTIONAL? MR. WALL: I THINK THEY HAVE A FAIR POINT. IF YOU ARE TRYING TO DESIGN THE COLLECTIVE CONSCIOUSNESS OF CONGRESS, MANY OR MOST MEMBERS DID NOT UNDERSTAND THE LEGAL CONSEQUENCES OF WHAT IT WAS DOING. THEY WERE DOING SOMETHING MORE TARGETED AND NOT THINKING ABOUT THE BROADER PROVISIONS OR THE FINDING. I THINK IT IS FAIR TO SAY THEY DID NOT FOCUS ON THIS. I DON'T THINK IT'S FAIR TO SAY THE COURT SHOULDN'T APPLY THE ACT BY ITS TERMS JUST BECAUSE

01:56:37

THAT WOULD CREATE A CONSTITUTIONAL PROBLEM. THAT'S EXACTLY WHAT NFIB SAID WOULD BE THE CASE. THAT IS WHAT CONGRESS DID. WHATEVER IT MAY HAVE BEEN THINKING OR INTENDED TO DO. CHIEF JUSTICE ROBERTS: ONE MINUTE TO WRAP UP, GENERAL. MR. WALL: AS YOU WROTE IN NFIB, QUOTING CHIEF JUSTICE MARSHALL, "THE MOMENT MAY RENDER THE MEASURE MORE OR LESS WISE BUT NOT MORE OR LESS CONSTITUTIONAL. SUBSECTION A REQUIRES EVERY LAW-ABIDING AMERICAN TO OBTAIN HEALTH INSURANCE UNLESS THEY

01:57:11

FALL WITHIN ONE OF THREE EXEMPTIONS. THE BROAD MANDATE, WHATEVER ITS WISDOM OR PRACTICAL IMPORT EXCEEDS CONGRESS'S ENUMERATED POWERS AND THE COURTS SHOULD -- CONGRESS -- WHATEVER ONE'S VIEW OF THE WISDOM OF THE ANSWER, THE COURT SHOULD RESPECT CONGRESS'S ANSWER, ADHERE TO THE TEXT OF THE ACA, AND ALLOW THE POLITICAL BRANCHES TO DECIDE HOW TO PROCEED GIVEN THE PECULIAR CIRCUMSTANCES OF THIS MOMENT. THANK YOU. CHIEF JUSTICE ROBERTS: GENERAL

01:57:47

MONGAN, YOU HAVE THREE MINUTES FOR REBUTTAL. MR. MONGAN: I HAVE THREE POINTS. IF YOU READ THE TEXT, YOU HAVE TO ATTRIBUTE THE 2017 CONGRESS THE INTENT TO OPPOSE THE VERY COMMAND THIS COURT SAID WOULD BE UNCONSTITUTIONAL. THE COURT SHOULD AVOID THAT RESULT IF THERE IS ANY OTHER POSSIBLE WAY TO READ THE TEXT. HERE THERE IS AN OBVIOUS ALTERNATIVE. DID YOU ADHERE TO THE CHOICE CONSTRUCTION THE COURT GAVE TO 5000A AND NFIB, THAT MAKES THE STATUTE INOPERATIVE. THE CHOICE BETWEEN BUYING INSURANCE AND DOING NOTHING. THAT'S A SOMEWHAT UNUSUAL STATUTE BUT IT ALIGNS WITH THIS

01:58:26

COURT'S AUTHORITATIVE CONSTRUCTION OF HOW CONGRESS AND THE PRESIDENT UNDERSTOOD THE AMENDMENT AND WHAT THEY TOLD HER CONSTITUENTS THEY WERE DOING THAT ALLOWED AMERICANS TO FREELY CHOSE WHETHER TO BUY HEALTH INSURANCE. I THINK I HEARD AT LEAST ONE OF MY FRIENDS ACKNOWLEDGE ON THAT READING IT WOULD BE CONSTITUTIONAL. SECOND, AAPC MAKES CLEAR THERE IS A STRONG PRESUMPTION IN FAVOR OF SEVERABILITY THAT CAN ONLY BE OVERCOME WITH SOME POWERFUL OBJECTIVE BASIS. RESPONDENTS CANNOT IDENTIFY ONE HERE. THIS MORNING THEY POINTED TO THE 2010 COMMERCE CLAUSE FINDINGS,

01:59:01

BUT THAT IS NOT AN INSEVERABILITY CLAUSE AND NOT RELEVANT TO THE QUESTION BEFORE THE COURT TODAY. THEY ADDRESSED THE SIGNIFICANCE OF A DIFFERENT VERSION OF 5000A, BACKED BY A MULTI-HUNDRED DOLLAR TAX CONSEQUENCE IN THE INITIAL CREATION OF HEALTH CARE MARKETS. CONSEQUENCE IN THE INITIAL CREATION OF HEALTH CARE MARKETS. CONGRESS ZERO DOUBT THAT TAX LONG WHILE AFTER -- LONG AFTER THE MARKETS WERE CREATED AND WERE TOLD THEY WOULD REMAIN STABLE EVEN IF 5000 A WERE MADE STABLE. -- CONFIRMED SEPARABILITY

01:59:38

BECAUSE CONGRESS MADE 5000 A UNENFORCEABLE. THE REMAINING PROVISIONS HAVE BEEN FUNCTIONING PERFECTLY WELL EVER SINCE. FINALLY, WHATEVER YOUR APPROACH TO SEPARABILITY, IT IS COMMON GROUND THAT ANY -- THIRD RESPECT THE SEPARATION OF POWERS AND NOT INVALIDATE ANY MORE OF CONGRES'' WORK THAN IS NECESSARY. WHAT IS BEFORE THE COURT TODAY IS AN ENORMOUSLY CONSEQUENTIAL STATUTE. IT ENSURES LIFE-SAVING BENEFITS AND PROTECTIONS TO HUNDREDS OF MILLIONS OF AMERICANS. THERE IS NO DOUBT IT HAS BEEN

02:00:18

CONTROVERSIAL. IN 2017, CONGRESS DEBATED WHETHER TO KEEP IT. CONGRESS ULTIMATELY CHOSE TO PRESERVE EVERY PROVISION WHILE ZEROING OUT THE TAX IN 5000 A. IF THAT SURGICAL AMENDMENT CREATED A CONSTITUTIONAL PROBLEM, THERE IS ONLY ONE REMEDY THAT WOULD RESPECT CONGRESSIONAL INTENT, AN ORDER DECLARING THAT PROVISION AND ONLY THAT PROVISION UNENFORCEABLE. JUSTICE ROBERTS: THE CASE IS SUBMITTED. [GAVEL[ THE COURT IS ADJOURNED. [NO AUDIO]

02:01:23

HAVE TO GO THE SUPREME JUST

U.S. Supreme Court Oral Argument: Health Care Law

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