Yesterdays panel rolled that the health care individual mandate is unconstitutional. The here is the oral argument in its entirety. You may proceed. Thank your honor and may it please the court, i will be sharing my time with mr. Letter from the house of representatives and dividing rebuttal time. To start with the issues raised in the court in the supplemental briefing order, we think the states were clearly injured by the judgment below and are aiming to appeal it. Judge elrod you might want to move the microphone. Mr. Siegel after this up a, all parties agreed this court has appellate jurisdiction. That is because of the continuing enforcing of the Affordable Care act until the court orders not to do so. They now welcome it, and the participation of the states and house of representatives and ensure their will be an ensure there will be an adversarial presentation of the issues in this case. Turning to the other issues in this case, the central feature of this appeal is that when judge engelhardt when you say your standing, the interbeen the intervening states, are you conceding the standing of the plaintiff states . Mr. Siegel no, your honor. Judge engelhardt so you are here in new orleans, telling us that the state of texas does not have the standing to litigate here. Explain that. What is the distinction you see that licenses you with standing here, but not the plaintiff states . Mr. Siegel the judgment below if it were ever to take effect would cost the defendant states hundreds of billions of dollars in federal funds. The state plaintiffs rely on a theory of standing that they have not proved out. They argue that the individual mandate, even though it has been stripped of its alternative tax penalty, is going to cause people to enroll in their medicaid and chip programs, but they have not produced any evidence to support that. That makes this case similar to in cranets decision versus johnson, when this court held mississippi did not have daca directive. Judge engelhardt dont they also cite the cbo report which talks about expenditures they can reasonably expect to incur . Mr. Siegel that report can conclude there is only a small number of people who, even once the alternative tax have been zeroed out, will maintain health care coverage. Judge engelhardt so they only have a little standing . Mr. Siegel no, your honor. They have not proved the final link in their causal chain, which show their individuals in their state who have enrolled in their medicaid and chip programs. It is that link them not proved up. To go back to the courts decision in crane, the record is similar to what this court held that mississippi did not have standing to challenge. That came to this court on a 121 motion to dismiss. We are here on Summary Judgment. The state plaintiffs burden was higher here, and i think the records are very similar. Judge elrod in that case, didnt judge owen write, in her concurrence, that mississippi had not even really had not even really urged its proper standing and that it would be a different case, in my view, more similar to one of the u. S. Supreme court cases, if mississippi had urged it standing . Because sometimes things that have not yet occurred can still give rise to standing. Mr. Siegel that may be the case. But they have the burden of coming forward and identifying and showing there is evidence that we can believe that people, because of a penaltyless mandate, are going to enroll in their programs. Judge elrod we do need to get ck to your client standing, but before we do, could i ask a little bit about the record . You said the record similar in that case. I want to make sure in the crane case. I want to make sure that i understand what you all are calling the Summary Judgment record is. I have this exhibit a, which are all the declarations from all the state, as well as the individual and various people who work at the state making certain declarations. This is in the evidentiary record for Summary Judgment. Correct . Mr. Siegel yes, your honor. Judge elrod was there any motion to strike, or to say that some of these were conclusory, or anything of the sort, that would have evidentiarily really equivalentarily with exhibit a . Mr. Siegel not that im aware of. Judge elrod your client did not argue in the District Court that it was a lack of standing . Mr. Siegel we did make that argument. And was also addressed by the District Court. Judge elrod just an oral argument. It was never pleaded . Mr. Siegel in our response to Summary Judgment we did not raise the standing issue. We did ask the courts to allow we explore further when it said it was considering entering Summary Judgment. And we argued at the hearing. Judge elrod if, as you argue, the record were insufficient to support standing, that would be because this alone is not enough, or because there is some contrary Summary Judgment evidence. But there is no contrary Summary Judgment evidence, is there . Mr. Siegel to be clear, our position is that it is not enough. Judge elrod youre not saying theres a fact issue on the question . Mr. Siegel that is correct your honor. Judge elrod so we dont need to remand for a determining trial on the standing . There is not enough evidence produced that there are not enough people enrolling in their programs because they zeroed out. Judge elrod can we talk about your clients standing a bit more . You believe you have standing because of the judgment that might take effect. But if a declaratory judgment that we are here on might take effect, how might that impact your client . That is not an injunction. It is just a declaratory judgment visavis these parties in a partial Summary Judgment. Mr. Siegel our understanding of that judgment and the former hades understanding is and an injunction in effect. Judge elrod he says it is not an injunction. Mr. Siegel yes and he entered a stay on his ruling pending appeal, and he also concluded that his judgment would harm us. That is one of the necessary factors to enter a stay. We have understood this judgment is binding. With respect to our state. Judge elrod if it were not binding with respect to your states, do you agree you would like standing in this appeal . Mr. Siegel no, your honor. I would want to the scope of the remedy in order to determine if it did impose practical harm. Judge elrod there is no remedy, it is just a declaration. Just standing was just a declaration. How do you have standing . Mr. Siegel if the federal government is not going to structure its Affairs According to that declaratory judgment and is not going to start cutting off our medicaid funds or making other changes, we might not have standing just based on the practical harm. I also believe we suffer legal harm from the judgment below in the forms of consequences. But this party does not need to answer that because all parties agree it has jurisdiction under windsor. If i might with that in terms of merits, as i mentioned, the central feature of this appeal is that when congress adopted the tax act it made the individual mandate unenforceable. That means that the individual mandate no longer requires anyone to do anything. That means it can be upheld as either a precatory provision, similar to those that congress adopts where no one think there is a constitutional problem judge engelhardt what other statutes are out there that use mandatory language like the one here that are now suggestions for Better Living or Something Like that . Out therehe statutes that the citizenry should know that they do not have to really follow . Isnt that your argument, pay no attention, just go forth and do good . This statute should just be ignored, if you so please . Mr. Siegel your honor, there are other provisions in the u. S. Code that include the word shall that are not binding or operative for example, separability clauses include the shall, but courts do not treat them as binding. They are merely interpretive. There also in operative provisions that have no effect currently, like section 5000 a, 2b, which defines the amount of the alternative tax for the 2014 tax year. That is another example where the word shall is used and has no effect. We certainly find ourselves in an unusual situation. The virtue of our position of understanding this is either a precatory clause, but the exercise would allow this board to uphold the individual mandate. It is underscored when able to interpret it to favor constitutionality, the courts have a duty. But you agree that congress could have included a severability clause, which you mentioned a few minutes ago, when it adopted the aca in 2010. So . Dnt it have done it seems it did the opposite where it said it was a amprehensive overhaul and set bunch of factual findings. Couldnt congress have said, by the way, we think these are helpful to the public and if any of them go by the wayside, we would want all of these to continue to apply . Mr. Siegel but the Supreme Court has said that congress silence does not create a presumption of severability. If congress does not include a severability clause, it does not create a presumption. That does bring me to the question here. Cant we talk a little more about the merits . Is a command not a command if the cbo says it is for some people . And indeed, blackstone himself said that people follow the law just to follow the law, because they want to be good citizens. Without regard to whether there is a penalty. Why isnt the command command . Mr. Siegel the court said even though it includes the word shall does not have to be read as a standalone command. Judge elrod right, because it was in conjunction with the tax. Justice also said the most natural reading of the provision was at the command. Tax,u no longer have the why isnt it unconstitutional . Mr. Siegel because it is possible to still understand this as a provision that does not create rights or obligations. Judge elrod but how can it be precatory if the most natural reading of it is a command that does require action by the federal government telling somebody to buy insurance . Mr. Siegel this is an alternative reading available to the court. As i mentioned a moment ago, it is an unusual reading, but we think the better course to chart is the one laid out to adopt this understanding of the individual mandate as either precatory judge elrod it doesnt apply. If this is no longer a tax, then what happens . Mr. Siegel then there are no negative legal consequences for going without health care coverage. Judge elrod violating the law . Mr. Siegel that is what nfib makes clear. You are not violating the law if you do not buy Health Insurance. Nothing bad will happen to them. There are no legal consequences. Judge elrod we are not at liberty to uphold this based on the Commerce Clause or the necessary and improper clause, given there have been five votes in the court against those propositions . Mr. Siegel we think the best way to understand this is as a precatory provision. Judge engelhardt you agreed with that proposition. Mr. Siegel the Commerce Clause necessary andas proper, using the main construct that nfib did. If congress requires an article one power to keep this provision on the books, it can look to the taxing power which still contains references to the number of dependents. It still talks about section g, which means the irs cannot bring criminal prosecutions. It is not generating revenue anymore, but this court rejected the argument that if the lot generates revenue at all times, it be upheld as a taxing power. Judge engelhardt does the 2017 zero, is that permanent absent further action from congress . Or does it have an expiration . To know because it seems like a yes or no question. Judge elrod i am sure you have time to talk about severability. We want to hear about that, too. If you could please answer the question. Mr. Siegel without further action from congress, it will be at zero. On the severability question, the Supreme Court has instructed that the inquiries wanted congressional intent. We think the answer is straightforward. In this case, we know what congress would have done by examining what it did. It rendered the individual mandate unenforceable by zeroing out the only negative legal consequence for going without health care coverage, and at the same time, chose not to repeal the preexisting condition productions or other important reforms made by the Affordable Care act. Congressction, expressed its views that the individual market, and indeed, the entire Affordable Care act, can operate without an enforceable individual mandate. We think that is all the court needs to know to resolve the severability question. Judge engelhardt the opinion seems to be very specific and its language, particularly with regards to the guaranteed issue, Community Rating provision, of course, the individual mandate. I know you have read that, as most people involved in this. But it seems that the language used is pretty heavy when it comes to those provisions being interlocking or intertwining. How do we unravel that in light of the language . Judge engelhardt that mr. Siegel that reflected the view of a 2010 congress. The question is not about what congress thought in 2010 or what the Supreme Court said in 2015. It is what congress did in 2017. And with its actions, congress made the individual mandate unenforceable and chose to leave the rest of the acus provisions. Judge engelhardt but were they in a reconciliation process at that point . Werent they limited in what they could do in regards to the tax bill . Mr. Siegel that doesnt change the analysis here. The relevant thing is that congress made the individual mandate unenforceable. To use a different judge elrod the tax is unenforceable, not the mandate itself. Mr. Siegel there is no difference between the mandate tax and the mandate itself. Judge engelhardt surely were had reached congress from the Supreme Court building that the nfib opinion had been rendered. Surely congress knew that the linchpi as justice the linchn as Justice Roberts had described had been removed . Judge engelhardt mr. Siegel if Congress Drew a different circumstance judge elrod how do we know that some members of congress didnt say this is the Silver Bullet that will undo the aca or obamacare . To vote for this just because we know it is going to bring it to a halt, because we understand the tax issue and it is no longer a tax . Would bel that computing intent to create an unconstitutional law. There were several members who voted for the tax cuts in the job act and came forward and said, we are not repealing the previous protection conditions, we are not repealing the subsidies. That would mean they were misleading the American People. Judge elrod the only way to know what congress intended is what they say through their legislation. And they left in place the mandatory nature of the mandate. Can you help me with that, please . Mr. Siegel your honor, they made the mandate unenforceable by getting rid of the tax. It is clear that congress intended for the two things to be one and the same. The house of representatives responded with several statements, in which speaker ryan said, we are repealing the individual mandate. The faces in the crowd, whether they are friendly or not . Mr. Siegel yes, you can. They have looked to statements of congress. The cbo report told the members of congress there was no practical difference between zeroing out the alternative tax and repealing the individual mandate. Judge engelhardt where are the statements from those who voted the010 saying no worries, individual mandate isnt really a mandate . Even though it says shall, we are voting on this today and citizens, this is an option that you can pay a tax or buy the insurance. Since you are using quotes, and i am not a fan of using quotes from elected officials who say a lot of things for a lot of reasons. I am not a fan of using that to support an opinion in court because, as judge elrod said, we depend on the law expressing the will of the legislature. But where are the statements, since you are bringing up all these statements, where are the statements from 2010 saying, dont worry about the individual mandate, it is actually not something that requires you to buy insurance . Mr. Siegel i dont know where those statements might be, but i would like to say that our point does not rely on the statements of members of congress. All the court has to do is look at the text, see that congress zero doubt the only thing that made the individual mandate enforceable. That is the beginning and the end of the severability. The other things we have pointed to, like the statements from members of congress, like the cbo report, like the failed efforts at repeal, are just supporting pieces for us. This courts analysis can begin and end with the bcja. Judge elrod i have some questions, so why dont we give givehree more minutes and the other side three more minutes . Mr. Siegel yes, your honor. Thank you very much, your honor. That is just one more point i want to make here. Another frame that the Supreme Court has used to determine the severability question is one of functional similarity. This Court Declares the individual mandate unconstitutional and render it unenforceable, but leave the rest of the Affordable Care act in place, it would create a statute that is not just consistent with congress design but would operate the way that congress designed in 2017. For those reasons and other factors we have pointed to hear, including we have pointed to here, including the failed thoses of repeal, are powerful indications that if a remedy is needed here, one that is most consistent with congress is the one that congress did, to declare it enforceable and separate it from the rest of the aca. Judge elrod can we turn back to the stenting of the plaintiff for a moment to the standing of the plaintiff for a moment . One of the states, i think it is missouri, says it has to pay form 0 to send out this to everyone. Why isnt that a tangible cost that would render standing for the state of missouri . Mr. Siegel because that is imposed not by section 5000a, but other provisions. Judge elrod it does not say they have to do it. There is nothing in the record that says from an irs official or annex clerk you have hired that says it is really because of some other reason. Why wouldnt the Summary Judgment record control on that point . Mr. Siegel respectfully, i understand them to be pointing reasonher code as the they have to issue these forms. That is not section 5000a. This court held the National Federation in order to bring in constitutional challenges to the provision, then the plaintiffs first have to show they are injured by the provision, then show the provision is unlawful or unconstitutional, and only then do you get the severability. Judge elrod is there an asymmetry in our standing analysis for the plaintiffs and interveners . Mr. Siegel i dont think so, your honor. It is clear to us that the judgment below would cost us hundreds of billions of dollars in adderall funds. Our in federal funds. If we were in the d. C. Circuit judge 10th circuit, would your answer be the same . Because they dont have that case. Mr. Siegel yes, your honor. I think the answer would be the same. Show atarty has to the Summary Judgment stage. Judge engelhardt who would have standing . Mr. Siegel no one would have standing. Judge engelhardt no one would challenge . Ng to over 200war about that years ago, when the king would say mr. Siegel the important distinction is it is not backed up with negative legal consequences. If i dont buy Health Insurance coverage next year, nothing bad will happen to me. That is my answer for the individual mandate. They can satisfy the options by doing nothing. I would be happy to answer more questions. Judge elrod i think we will address you on the next round. Mr. Siegel i appreciate it. I am the general counsel of the house of representatives. I have an overall feeling i want to get into, but because of judge engelhardts questions go to the heart of this case, i would like to address that first. Judge, you were saying we have this mandatory language, and therefore the people of the United States would note there is a mandate. That is not correct. Set onreme court equivalent the Supreme Court said unequivocally that there is a choice. It is not a mandate, there is a choice. You can either, you shall, maintain Health Insurance, or you pay this tax. That is the definitive interpretation of what the Affordable Care act means. The Supreme Court said that, and yes, congress was well aware of that, very well aware of that. In this court is bound by that. Everyone in this courtroom and the congress, we are all bound by what the Supreme Court majority held in the case. Congress has the authority to take a tax of a certain amount and make it yearround. No one can contest that. Congress did that. That means the choice is still there. The choice that the Supreme Court said was in this statute. At that time, the choice was maintain Health Insurance or pay a significant tax. Maintaine now is maintain Health Insurance or there is no tax, there is no penalty. Congress was free to do that. Changed whatthing the Supreme Court had told all absolutely nothing changed. But the Supreme Court has told all of us is the law. Shall in this provision does not mean must. The Supreme Court definitively told us shall does not mean must. Justice roberts knew what he was writing, when you look at the Supreme Courts ,ecision, a key part, page 568 chief Justice Roberts spoke about it. He says, there are also some people who are not going to be subject to the tax. Original the statute. The question is, chief Justice Roberts says, we expect congress to be troubled by the prospect of making all those people outlaws. Original statute. But nevertheless, chief Justice Roberts says the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying Health Insurance. The Supreme Court gave us the answer already. This ties in with my overall theme. Theme. What the plaintiff states are asking for and what this court did is entirely inconsistent with how we know what is supposed to act. We know that courts are required statutory to give a interpretation if that is constitutional, as opposed to one that is not. Severabilitynder you are directed, you are instructed to save everything. Ou can, unless it is evident the burden is on the others. Unless it is evident congress did not mean that, would have preferred no statute. Engelhardtd judge are correct to say we dont always trust the statements even by the speaker of the house and the Senate Majority leader to tell us what it means. But remember, we dont have to show that congress would have wanted this court to keep that language. The burden is on the other site to say it is evident. , thats a High Standard Congress Wanted this entire statute to be struck down. The District Court judge elrod he doesnt have to have wanted it to. It is a hypothetical. The Supreme Court has set in any number of severability issues, you must uphold whatever can stand on its own. But this applies to the first part. My colleague pointed out, congress did know what had been done in nfib. Obviously it was aware, and Congress Said, ok, we are going to zero out the penalty. Texas says, ha, caught you. You just did something unconstitutional because you left in place the individual mandate, but you put the tax. You just did something unconstitutional. But there is another way to read it. Another way is to follow what the Supreme Court said and say, no, you havent done anything unconstitutional. You made the tax zero. Again, everyone agrees congress has the power to do that. The way to read this is to say, that simply means the choice that chief Justice Roberts made clear to all of us is there. Unhappy withis what chief Justice Roberts did. They wish he had done something different. But he didnt. That is binding, and that is binding on the District Court. Judge elrod obviously you dont believe that statute change. Its changes have made that not a possible reading anymore. Mr. Letter but that is not correct, your honor, because the change remember, the change was Something Congress could do. It made clear through this change that there actually was even less coercion than there was before. Remember before, chief Justice Roberts said even with coercion, even when faced with this massive tax penalty, you still have the choice. Judge elrod any judge elrod it isnt that the degree of coercion is an issue. Any coercion is inappropriate. It is not the degree of coercion, it is whether or not is tied to a revenue producing rule. Isnt it . Mr. Letter no, your honor. I do not think that is the question here. Judge elrod that was essential to nfib. Judge elrod mr. Letter in withdrawing from majority Supreme Court said there was a choice. You either shall maintain Health Insurance, or you shall pay this tax penalty. And congress has now said, it we and the ones who did speak said, we do not want there to be any tax penalty, the ones who did speak, we want the American People to continue to have a choice. We want to make it even easier choice for them. Judge elrod do you want to address your clients standing . Mr. Letter happy to come ironic. Happy do, your honor. To, your honor. The main thing i want to say to you is that under your precedent, you do not have to decide whether we are properly and intervenor here or not. The ruiz case is binding law of this circuit because there is article three jurisdiction. The but he can doubt that. It is quite clear. I think all the parties agree on that. California it is argued by my colleague. This court does not have to resolve whether the house has standing to intervene here or not. Judge engelhardt what about Justice Ginsburg . That she get it right in the house of delegates case . That case is written pretty generally, and it is a new case. Mr. Letter it is exactly that, your honor. Obviously, she got it right. She voted with the Supreme Court majority. So she got it right. You and i both know that. But remember, the Supreme Court majority was dealing with a state. Judge engelhardt she put it very generally. When i first saw the opinion in light of this case being on our docket, i was drawn to it. And i said, it was probably written about the Virginia House of delegates, about how that states legislative framework is set up. But maybe a little to my surprise and yours as well, it seems as though the opinion is written in very general terms. Mr. Letter your honor, and remember my first statement is you do not have to reach this. Under ruiz, you do not have to. Your honor, yes, i think there one sentence or maybe two. The rest of the opinion makes clear that Justice Ginsburg and others were talking about the state. Judge engelhardt i guess we can all read and to quote well from it. I do not read it that way at all. Relegating her statements to two statements that we should overlook i think it is i did not get that from the opinion at all. Mr. Letter your honor, i cannot do at this moment but i could read to you all the times she says stay. State. The Supreme Court majority said in virginia, only the attorney general can litigate for the state. Right . That is not true for the federal government. We know, for the federal government actually, congress has provided, and this up in court has recognized, all sorts of people can litigate for the United States. For example, the false claims act. The house of representatives is one of those bodies. Mr. Letter absolutely, your honor. Justice ginsburg mentions chada. Decision. Mentions chada. You combine shada with 530 d, the executive must notify both houses of congress. I am one of the peoples it is supposed to notify when it is going to quit. When it is going to basically let down the American People and not defend the statute like this, even though their obvious there are obviously valid arguments to be made in support of it. Judge elrod if a coequal branch of government says something is unconstitutional, havent they actually taken an oath that they will not be trying to uphold unconstitutional things . Unless you believe that judicial supremacy is so vast that a branch is not even allowed to have its own opinion at all. Mr. Letter good point, your honor. Judge elrod do you agree or disagree with what i just said . Mr. Letter im going to agree and point out the Justice Department has for many, many decades had the position that it will defend acts of congress if there is a reasonable defense for them. And here, the Justice Department, it clearly is a reasonable argument, whether you agree or disagree ultimately, the Justice Department finally said yes, and we wish it were otherwise. But find, they have done that. But, chada says, and their batch in their batch of cases, this circuit, the 10th circuit, where have cases where you have had situations where the house and the senate, or the house alone, has intervened and defended constitutionality. Judge engelhardt i want to ask you about that. I assume since you are here on behalf of the house, youre speaking on behalf of the house of the 111th congress. The 115th congress, and the 116th congress. Mr. Letter only the 116th congress, your honor. Judge engelhardt were talking about intent. You have spent a particular amount of time talking about the intent of the 110th congress and we spent even more time talking about the intent of the 115 115th congress in 2017. Should we not also question why the senate is not here to talk about intent, the will of congress would necessarily implicate the senate, would and it . Wouldnt it . Why would they not be here to make the organs youre making . The same arguments you are making . Mr. Letter your honor, the answer is, remember that we are pointing to the text of what Congress Passed in 2017. Judge engelhardt you pointed us also to some quotes from members of different parties of congress in 2017. It seems like we are back to the tax, which i am very happy to hear. Is,letter all i am saying you should take comfort from the fact that the speaker of the house and Senate Majority leader agreed on this. But lets just go to the text. I am very happy to do that. The text is, we got rid of the penalty, we put it at zero, and we left the entire rest of the statute intact. Judge engelhardt why would not the senate also upon being notified as you suggest, by the executive, why would the senate not also be here to say, this is what we meant when we wrote this . They are sort of the 800pound gorilla that is not in the room. Mr. Letter your honor, the senate operates different leaf from the house. I cannot speak for the senate. But it does not matter whether the senate is here or not. Im not saying that you should roll this way because it is the position of the house. I am saying, with the proper respect here, you must rule this way because the Supreme Court told us in nfib what the statute means. And in 2017, Congress Said what it meant in the text. And, we know what your response your responsibilities are in upholding any statute that you can, particularly in the severability area. It has to be evident that congress would have preferred to have no statute at all. There is no evidence. Not just a little, there is no evidence of that. I will say the rest of my time. Thank you, your honors. Kyle hawkins for the state plaintiffs. As it stands today, the aca presents a standalone command to buy an insurance product that the federal government deems suitable, and it does so without raising a single dime of revenue. The text of the aca declares that mandate essential to the and the goals of that the goals that Congress Wanted to achieve. The Obama Administration thought of that as an in severability clause. As an inseverability clause. The District Court correctly synthesized those considerations with the Supreme Courts holding in nfib and it reached the correct conclusion. The individual mandate is unconstitutional, and it is inseparable from the remainder of the law. Judge elrod can you talk about that essential term, because that is also used in reference to arisa, and other law in the statute. You are not here, trying to strike down orisa, are you . Saying it is inseparable from arisa . Mr. Hawkins no, your honor. The aca includes what amounts to an inseverability clause. It is in section 18091. It says the mandate, not the penalty, but the individual mandate is essential for driving people to sign up for Health Insurance, which itself is essential for achieving the marketplace reforms that Congress Wanted. Congress wanted universal Health Insurance, and congress declare the mandate essential to achieving that goal. Judge engelhardt there was mention in the briefs about provisions in the aca that amended certain criminal statutes relating to health care frog and things of that sort. Fraud and things of that sort. Is it your position that congress would not have made those changes but for the monolith of the aca . Mr. Hawkins your honor, my position is that the best evidence of what Congress Wants to do is in the text. The text includes this inseverability clause. I think it follows from that minor provisions and major provisions are all inseparable from that clause. Indeed, that is not just my conclusion. Every Supreme Court justice who has looked at this question has concluded that the in visual is not severable from any other person the individual mandate is not severable from any other portion of the Affordable Care act. All who looked at nfib reach the same conclusion. The sixjustice majority in king v. Burwell discussed the mandate as operating as part of a three of a three legged stool, to use the term of the d. C. Circuit judge. Judge elrod what do you say to those who would say that it is absurd to say that it is not severable from a restaurant calorie guideline . What you say to someone who says that . Mr. Hawkins i would say that im not in a position to psychoanalyze congress. And indeed, the courts are not to engage in analytical tasks. I am not in a position to guess what congress had intended. Would have intended. What i am in a position to do is look at the text of the statute for the court today. If the court were to go back to the law library and bloody current copy of the u. S. Code as it stands today, the court would see a command the American People to maintain central coverage and no revenue raising, and aning of that law, inseverability clause that this that the mans demands it is essential. Congress had multiple opportunities to excise that in severability clause from the language of the statute. If we look at what Congress People may have wanted, i think we should take into account that judge oconnors decision has been on the books for seven months, declaring the mandate unconstitutional mandate inseparable from the rest of the law. Congress has done nothing about that. If congress thought that conclusion was wrong, it couldve gone back and excised the individual mandate from the law. It could have excised the inseverability clause in the law. It has not done any of that. I think that just demonstrates that congressional intent is not monolithic. As your honors correctly is a very difficult and dangerous game to try to determine what different congresspeople are thinking about when they vote for different statutory provisions. The best evidence is the text itself. I would further submit that if congress believed that the in severability clause was no longer appropriate, if it believed that the mandate was no longer necessary to the law, it had a duty to excise that statute from the law or that section from the law. But it did not do that. And it does not is not this courts role to act as a legislature and cut sections out of the statute that congress has had the opportunity to amend but has not done so simply because the court thinks as my friend on the other side suggests, that it can guess what Congress People were thinking about. Judge elrod can you comment on Justice Thomas opinion in murphy, that we do not have our blue pencils in any regard as a blood to these parties, we should say we are not going to apply this law . Mr. Hawkins yes, your honor, in murphy, we do not have a severability clause or an in or an inseverability clause. The issue is whether the professional and amateur sports protection act must be struck down in its entirety including the advertising provisions of that law notwithstanding the ofstitutional portion of it the states violation of the 10th amendment. It is consistent with justices thomas and murphy. Here we have an inseverability clause. Courts treat inseverability clauses as almost dispositive. We saw that in the Medicaid Expansion. Seven justices on the court voted to uphold the Medicaid Expansion unconstitutional. They decided to sever that portion from the remainder of the aca, and they did so because the medicare act contains an in an inseverability clause. If courts treat severability clauses as almost dispositive, they should do the same with in the same for inseverability clauses. Murphy did not speak to that issue nearly as clearly as the Affordable Care act speaks to the issue of severability before the court today. Judge elrod could you speak to whether or not we should be treating this as an injunction as opposing counsel argued . Mr. Hawkins we thinks that we got in the District Court, at least effectively. Judge elrod i thought you agreed with them even though it says this is not granting an injunction, instead granting partial Summary Judgment on this declaratory judgment. So, inkins right, District Court, we asked for a nationwide injunction enjoining the enforcement of the aca. And we asked for a declaration that the individual mandate was unconstitutional and inseparable from the remainder of the aca. Judge oconnor asked an oral argument about the relief we were seeking we represented we would like a nationwide injunction as well as a declaration. The federal governments position before the District Court was that an injunction was not necessary. The government asked the District Court not to enter an injunction. They said we do not need one we said we do not need one, we are going to treat the declaration as though it were an injunction. Judge engelhardt do you agree, i think on page six and 10 of the latest submission from the government that this relief, the ruling from judge oconnor does not extend beyond the plaintiffs states in this case. Do you agree with that . Or, where would we go if we were to affirm judge oconnor and send the case, assuming it does go higher, if the case went back to judge oconnor, what would he do, what would you expect him to do if you are seeking injunctive relief and the federal government is now saying that, well, no worries, this ruling only applies to the plaintiff states. Would that be satisfactory . Mr. Hawkins your honor, i think it would depend on what the federal government does. Judge engelhardt you have already said that they do not think the ruling applies elsewhere. Mr. Hawkins and that is a disappointment to us. Because we think that is inconsistent to what they represented judge oconnor in the strict court. If they were to follow the cases the conclusions of this case, claiming it is affirmed, they would have to evaluate if we have been the victim of a date and switch and we might have to go back to District Court and seek the injunction we did not get initially. Judge elrod if you are entitled to it legally, if the court ruled on the partial Summary Judgment, and then you have to go back for further the relief, the remedy has not been spoken of yet. Mr. Hawkins i think thats right, your honor. That we will go back to District Court. Whether or not we need to seek an injunction, im not prepared to make a representation on that today. I think it will depend on what the federal government does going forward. Judge elrod im not saying you are entitled to any injunction. Im just saying that to the extent that you say we thought we already had one or some like or Something Like that, you are not to that process yet. It is a partial Summary Judgment. Mr. Hawkins we are just taking the federal government at their word. I think now they are briefing a supplemental briefing to suggest it only applies in the 18 plaintiffs states. In the 18 plaintiff states. I do not think that is the message we heard from them in the District Court. We will be evaluating options moving forward as to what further really we may need to seek for the relief we may need to seek. Judge elrod do you want to address your clients standing . Mr. Hawkins yes. First, there to be no doubt that this court has article three jurisdiction for the reasons that mr. Hannity will present shortly. The plaintiffs have an article three injury. That is enough for this court to proceed to the merits. If im wrong about that, it is important to note that the states have standing in their own right because the afford will care act because of the states in classic pocketbook injury. We have evidence in the record below, including the cbo reports, which looked at the mandate and said that this is going to encourage people, and indeed cause people to sign up for Health Insurance. And it will do that regardless of whether or not there is a penalty attached to it, because people feel a duty to comply with the law even if there is no penalty attached to it. Just a few days ago, all nine justices in the u. S. Supreme court agreed that a state has standing to challenge a federal action that might have the predictable effect of causing third parties to act in ways that injure the state. Judge engelhardt do you agree that mr. Siegels clients also have standing . Mr. Hawkins yes, we agree on the basis of our understanding that this courts declaration is meant to apply nationwide and would have the effect of an injunction. And that if it were to apply nationwide it with because a classic pocketbook injury to states that would not get funding the aca makes available. Judge elrod did you get to the thirdparty census issue . Can you address whether or not the preening of this form in it is 50,000 worth of standing, so to speak . Mr. Hawkins yes, i think that is an independent basis. Judge elrod they say it is not really pursuant to 5000a. Mr. Hawkins it is not in the text of that, but it is in the forms. Where they have january through december laid out. As employers, we have to go through and check boxes to say which months our employees had Health Insurance. I think it is fair to say that that is traceable to the individual mandate which requires continuous covered except for short gaps. Judge elrod is there anything in the record whatsoever that indicates that any of these requirements, checking off the box, i guess i will ask the individual plaintiffs attorney, but checking off the individual box or filling out these forms is no longer required, or no or will no longer take place. Is there anything in the record that indicates that . Mr. Hawkins theres not that where aware of. As far as we know. We have not heard from the irs that theyre going to do anything differently for next years tax forms. We have not seen as yet. We do have evidence in the record that those forms interest. There is nothing in the record that indicates that that is going away in light of the tc j. I think your honor is quite correct. That is an independent basis for our injury. Judge elrod it is a question, not a statement. Mr. Hawkins i think that is the basis for injury, as is the cbo report. The aca causes a classic pocketbook injury to the states. And that should be the end of the standing analysis. If the court even gets that far, if it were to have doubts about the individual plaintiffs standing. I would like to dress a few points that the other side has raised in their presentation. First and foremost, i think the other side particularly, my friend mr. Letter, is seriously misreading the Supreme Court decision in nfib. Nfib holds that the individual mandate is unlawful, that 5000a is best read as a command to buy insurance, and it held that the command despite being unlawful can only be saved if it is fairly possible to read the law as a tax. Finally, the law cannot be read if the law cannot be read as a tax, then the original holding stands and the command is unlawful. I think it is important to understand the structure of chief Justice Roberts opinion and how he gets there. In part iiia, he looks at the mandate, only the mandate not the penalty. He says the best way to read that is as a command to buy insurance. He says two things about it. Command one, it is a command to buy insurance. And two, that command cannot be justified by the Commerce Clause or by the necessary and proper clause. That is the end of iiia. He then shift gears. 3c, he saysand given our holding, we need to determine if there some way to save the individual mandate. What he finds out in iiia and in three b and three c, given that the penalty is raising revenue for the government, he says we can glue the individual mandate provision to the penalty provision. Once they are glued together, they function as a tax. Such that the law can be saved by considering this as a tax, and that tax is available under the federal governments taxing power. What happened in 2017 is Congress Took away everything that supported parts three b and 3c of chief Justice Roberts of chief Justice Roberts opinion. This is no longer raising revenue for the federal government. A dollar can be fairly characterized as a tax. So why did the tc j parts three b and three c of chief Justice Roberts opinion are irrelevant. The only thing we are left with is part iiia of chief Justice Roberts opinion where he holds that this is a command to buy insurance. Judge elrod we do not need to be read to from the Supreme Court opinion, do we . Mr. Hawkins i think we read the Supreme Court opinion in light of subsequent events. I think it is crucial to do so here. The entire basis of three b and three c is now off the table. Chief Justice Roberts in iiia holds that this is a command. That is fully supported by the four dissenting justices. There is no doubt there were five votes on the Supreme Court that it is a command, not justified by congress pattern or the necessary and proper clause. And the best evidence is just as ginsbergs dissent. She faults chief Justice Roberts for discussing the Commerce Clause. Justice ginsburg said look, this is obviously a tax, we should just say this is a she said we she should just say this is a tax and be done with it. Chief Justice Roberts rejected that in part 3 d . He says i have to reach a Commerce Clause holding. I have to read it and i have to give it the best reading possible and then i have to assess whether that this reading whether this reading is constitutional or not. Only after doing that analysis, then do i get to the taxing issue. I think that interplay between chief Justice Roberts and Justice Ginsburg shows that the reading is correct. Our reading of nfib is correct and the other side is incorrect, because there are differences between the four different parts of Section Three of chief Justice Roberts opinion. Judge elrod do you really mean it when you say the shell is enough . What is it that you shall buy insurance, but if you do not, you get an ice cream cone. You actually get something if you do not buy the insurance. What is the answer then . Mr. Hawkins your honor, i am not sure how congress would justify that under its enumerated powers. Judge elrod the question is about does the shell matter even if youre given positive incentives to not do it . Mr. Hawkins i am not sure how that would be fairly red as a tax read as a tax. It sounds like it is not raising revenue for the federal government. I think again you would have a command to buy insurance. Judge elrod is it still a command . Mr. Hawkins it is still a command, your honor. Judge elrod what if you get a house . Mr. Hawkins that is a command. It is still a command to buy insurance. That is the holding in part 3 a . Judge elrod it is not an economics analysis at all . Mr. Hawkins i dont think it is. It is a command to buy insurance. The federal government cannot do that. The question is whether that command, your honors hypothetical, can be glued to something somewhere else in the statute. Statute that would save it. That is what the chief did. Did in three b and three c. In the house buying hypothetical, that would be the question. I cannot think of how it would save it. But that is how the analysis should play out. Judge elrod could you address the ridge of erasure fallacy . Rid of erasure fallacy . Why is striking the word shall a textbook example if theres no Government Official in forcing the word shall . Forcing the word shall . Your honor, i think it is mr. Hawkins your honor, i think it is important to tie it back to the relief we are seeking. We are asking for a declaration that this law is unconstitutional. The mandate is unconstitutional. We are asking for an injunction against the enforcement of the individual mandate and against the Affordable Care act. Judge elrod striking out of a word. Mr. Hawkins we are not asking the court to get out any racer an eraser or tear pages out of the u. S. Code. We are asking for specific forms of relief. Declaration and injunction. I dont think there is any rich of erasure fallacy. Writ of erasure fallacy. Do you have any citation . Correct me if i am wrong. I do not believe Justice Roberts in the nfib opinion opined that all on severability, because he did not reset the issue having found as he did in the prior sections. Is there anything you can cite as to, like a best case, as to how severability would be viewed by Justice Roberts . I read the dissent, of course. We know how they feel about it in the context of that is. Is there anything you can point to that would suggest severability in this case . Justice roberts in particular. Mr. Hawkins i think the best case of that would be king v. Burwell. That case is about the various subsidies that go along with exchanges. Chief Justice Roberts in describing how all this works talks about the individual mandate as being essential to the functioning of the other Health Care Market reforms. That the aca suck to achieve. Ought to achieve. He calls out the guaranteed issue and Community Rating provisions. It has always been understood by the obama and Trump Administration that it all fits together. Chief Justice Roberts does speak to that. I think that is the clearest that the chief would agree with. Judge engelhardt is the language he uses broad enough to consider . Youre asking for the entire one of your colleagues was arguing earlier and they mentioned the guarantee issue and the Community Rating amongst some other specific provisions that are intertwined. Do you believe that his statements in king v. Burwell are so broad as to include the entirety of the statute . Mr. Hawkins i think they are, your honor. Your honor is asking about chief Justice Roberts specifically. He indicated in numerous occasions that text controls. That we start with the text and when it is clear and is positive, we do not look further than that. I think he would agree that the that when you have an inseverability clause, it should be respected. I believe the chief justice was in the majority, declaring the pasta, professional and amateur sports protection act unlawful in its entirety. The court reached that conclusion without the benefit of an inseverability clause that we have here today. So i think to answer your honest question, there is ample jurisprudence to suggest that if one is committed to the text, which chief roberts is, it follows that the entire Affordable Care act is inseverable from the constitutional mandate. Judge engelhardt my question was limited to the justice. He is the author of the two opinions we have been talking about a great deal today. Mr. Hawkins that is right, your honor. Every judge has said the individual mandate is inseverability from the rest of the law. Is inseverable from the rest of the law. You combine that with the opinion in king v. Burwell, which was the six justice opinion, that is good evidence which shows that it is correct. You have an oil problem . Mr. Hawkins no, your honor. That is a case about the federal question of jurisdiction. What he was saying was that even though there is a federal statute, that does not get you into federal court automatically just by invoking that statute. Instead, what the court needs to ask is, under the inverse hypothetical courses, would that be long in state or federal court . If the answer is federal court, then he says yes, there is federal jurisdiction. If the hypothetical course is in state court, you do not get into federal court just by virtue of the judgment act. That is what he is saying. The hypothetical to enforce the aca will be brought by the federal government. There is no problem there. I believe the federal government agrees with us on that. They have a footnote on the brief actually. I am just about out of time. I am happy to answer any additional questions. Otherwise, we would ask the court to upper and the judgment below in its entirety. I am just about out of time. I am happy to answer any additional questions. Otherwise, we would ask the court to upper and the judgment below in its entirety. Mr. Hawkins thank you, your honor. I am with the Justice Department on behalf of the federal government defendants. I plan to go through three points. I will go quickly through the ones the court has already addressed in detail. The first is why this court has jurisdiction to address the merits. The second is why the plaintiffs case succeeds on the claim succeeds on the merits. Third is why the judgment should be limited to injuries the plaintiffs have standing to pursue here. First, in the courts supplemental briefing order, there were several questions, some of them are complicated, but there is a simple answer. I think all the parties agree. This case follows the windsor model. The United States continues to enforce the aca and it will be will do so pending a final resolution of this case. Given that enforcement that is sufficient to have on article three controversy between the plaintiffs and the United States and of course the participation of the intervenors is helpful to ensure a vigorous adversary presentation of the issues and that is basically exactly what happened in windsor. In both cases, the executive branch made a judgment that the statutory scheme was administering. It was not constitutional. The Supreme Court discussed the conundrum faced by the executive branch and decided this was a reasonable way to allow the Judicial Branch to have the final say. Judge elrod you do not believe that the executive branch is required to continue to enforce . Its a choice, right . Flentje mr. Flentje theres an enactment that might theres enactments that might be cost additional to a criminal law on the books but not constitutional but the executive branch can simply not enforce it and it would never get to court. Judge elrod it is not because it may be prudential for you to wait for judicial supremacy but it is not required. Mr. Hawkins flentje i think that is correct. Mr. Flentje i think that is correct. The majority accepted this as a reasonable way to manage, especially when you have a complicated statute that covers a lot of what a lot of ground. That is what is happening here. The second point on jurisdiction, as we think the individual plaintiffs have standing based on the combined impact of the mandate which requires them to buy insurance, and the insurance reforms, which ensures the insurance they must buy is unsatisfactory. That is an injury that is sufficient for District Court jurisdiction to evaluate the merits of the case. Judge elrod does the government a position on the states and any special solicited under the massachusetts case . Mr. Flentje we do not have a position on the standing. The District Court did not address the states standing. It raises a variety of issues. Our position is because the individual plaintiffs had standing, it was simple at the adjudication stage and the District Court handled things correctly. And saying given the have established standing, the court can go ahead and address merits and not get into those other issues. Adopting the position that the District Courts ruling applies only to the plaintiff. Plaintiff states and the individual plaintiffs. Is that not designed to reflect on the lack of standing of the intervenor states . Mr. Flentje yes. The question with the intervener states is do they have standing to appeal the District Court judgment . There, look at the declaratory judgment. Under that declaratory judgment statute, it declares the rights of the plaintiffs visavis the United States. It does not say anything about the rights of the intervener states or the house, although they are not talking about that. So i think the way to handle that issue and probably not fully satisfy the intervenors the intervenor states, is to make clear that they would not be bound as an estoppel manner because they are not participating as parties withstanding. Judge elrod your own case somewhere else or here, too, if they were eligible . Mr. Flentje i dont want to suggest anything. Judge elrod can you help, though . Because everybody else here says District Court opinion says what it says, says this was in lieu of injunctive relief and the government is smack dab in the middle of all of this understanding, and you are saying something different. Mr. Flentje this are court issued the declaratory judgment. A final declaratory judgment declaring the right between us and the plaintiffs, the federal government will follow that judgment as to what the law means between the parties. Texas talked about only doing it in this state. We will actually do it with respect to the plaintiffs. That means additional actions would need to be taken that had an impact beyond those states, beyond those states that would be part of following the law as declared by the District Court. It is a declaratory judgment. I do not know that there is a big daylight between what an injunction would mean and what a declaratory judgment would mean at the end of the day, once there is a final ruling. At the end of the day once there is a final ruling. And you know, and so, that gets me to the point. A lot of these technical issues are important when you are talking about District Court judgments, but a case like this likely would end up with a precedential decision. Of this court or the Supreme Court. It binds itmatter, as precedent. There are technical issues on the scope of the judgment how that would work in a different context. Judge elrod the District Court was modest in the extent it granted a stay of its own order pending all of this going on. What if that stay were not in place . What would happen . What is the government planning to do . Mr. Flentje again, we think it is great that the state is the stay is in place. This is a very complicated program and multifaceted coming obviously. Multifaceted, obviously. It is a significant part of the economy. That was important to the United States. As far as how compliance for the declaratory judgment that is final and on appeal, that raises competency issues. Complicated issues. We are appreciative those do not need to get sorted out until there is a final ruling and the case is fully resolved and the appeals are exhausted. Judge elrod but the government believes or anticipates that it could find the act to be inseverable and do so only in certain states and strike it down only in certain states in its entirety . Mr. Flentje the government believes that is a possibility . Mr. Flentje again, i think a lot of this stuff would have to get sorted out and it is complicated. That is one reason the stay was granted. I think how it applies in the states, which hearts cant be applied at all because they would injure the states and they are part of the declaratory judgment, i think that raises a lot of complicated issues which militated in favor of the state and militated in getting a final resolution with appeals exhausted before that step is taken and then go from there. So. Judge elrod your position is we are not nearly there. We are not meeting to remedy at all. Mr. Flentje there is a final remedy. The aca is declared invalid. That is a little overbroad. Sorry. Judge elrod it does not say where it applies or whether it applies beyond these parties. Mr. Flentje i think thats right. That comes from the declaratory judgment act. It says that we cannot apply the aca to these plaintiffs. That is what it means. We have not gone intervening we have not gone done that road yet. Down that road yet. Intervening states have intervened even before the motions were pending in the case. They intervened, if i recall correctly from the briefs, prior to the amended complaint, so they are early on. The District Courts judgment does not make a distinction. I realize the issue was not before it so it could clarify. But it doesnt make a distinction between the plaintiff states and the intervener states. So we have what we have here in this court. Mr. Flentje but the plaintiffs were seeking the declaration of the rights between the plaintiffs and the United States. They were not seeking a declaration of their rights amongst each other. Judge elrod use the word parties . I thought the District Court used the word parties. Mr. Flentje i would have to check that. I do not think that would be judge elrod does that mean the intervenors who were already at the party so to speak . Mr. Flentje we think that would be a misuse of the judgment act given i do not think they would have a basis of seeking a declaratory judgment against the state. We are the ones who enforce the aca. The states. We are the ones who enforce the aca. I just dont think that would not work. I just think that would work. Reading parties in that manner is reasonable and the way to go there. I think it is a simple solution. The states could get some comfort if this court made clear they would not be stopped estopped or bound, aiding the court in an adversary position, presentation. Judge elrod that is an interesting statement for you to make. Mr. Flentje well, i mean i just we think that is how the law would work. The operation of an opinion of this court would work that way given the scope of the declaratory judgment act, given the standing issues, and given the fact that it can only declare the rights between the people on the same side of the fence here. Those are the rights that can be declared under that statute. The only other thing i would say on remedy is we differ with the plaintiffs. The remedy should also be limited to the injuries that are the declaratory remedy should also be limited to the injuries that are established by the plaintiffs. Again, we think this is more of a technical point. It is a very important institutional point for the government that District Court judgments should be limited to the dispute between the parties, and the injuries that establish standing for the plaintiffs. Again, we do not think that needs to be sorted out, which provisions the aca would be covered or not covered, because that was not addressed in the District Court. It would require an assessment of injuries to texas, which the District Court did not conduct. And again, it might all be obviated if there is a precedential ruling that might resolve these issues as a matter of precedent. Judge elrod could you help a bit with that . That is a little bit vague. It seems there is an argument that it was inseverable all the way. But then the government said only a couple of the other provisions which would be wrapped up in it. For example, the restaurant provision would not be wrapped up in it, or these criminal laws. What is the governments position . It is inseverable from mr. Flentje the mandate . And also the insurance reforms. Judge elrod thank you. So it is inseverable from those but not for the rest. So you would leave in place the calorie guide. Is that right . Mr. Flentje our argument on the scope of the judgment is totally separate from our argument on inseverability. As this court said, severability, you look at what the unconstitutional provision in light of the statute as a hole, as the centers as a nfib, the centers and looked at it, you cannot access it without analyzing the will statute. It was all inactive together. Judge elrod are you saying it is entirely inseverable now . Could be kept, or the whole thing has to go now . Mr. Flentje the entire act is inseverable. The judgment might still be limited. The judgment of the District Court should still assess the injury that these various provisions caused plaintiffs and should not declare a provision that has no impact on the plaintiffs to the unlawful based to be unlawful based on applying severability. Say, the reason this is inseverable is because the whole statute rises or falls together. We have the findings that work as a non severability clause. We have nine justices that sa id this all works together. We have all this assessment of severability that looks at the statute as a whole. As far as this courts legal reasoning, you can say the statute rises and falls together. However, the judgment needs to be narrowed a little bit. The declaratory judgment to those provisions that injure an injure and impact the plaintiffs. And send the case back. Judge elrod you didnt litigate that in the District Court when the District Court was writing the partial declaratory judgment. To the extent mr. Flentje we think it is an article three issue. We did raise it in our brief for this court for the first time. We do think, given that, it would be appropriate to remand to consider the scope of the judgment on that point. But again, we think it is more of a technical point, because again, the severability analysis requires looking at the statute altogether. And obviously, theres precedential impact of this courts decision or a higher courts decision that could make sorting out a lot of the details unnecessary down the road. Judge elrod thank you. I think we have your argument. Mr. Flentje thank you. Mr. Henke good afternoon, your honors. May i please the court. My name is robert henke here on behalf of the individual plaintiff. Plaintiffs. They have standing to bring this action because they are directly injured by the Affordable Care act, and the relief they seek would redress that injury. My clients clearly have an injury, in fact, pocketbook injury. It is the law of the land that they have to purchase a product that they do not want. Your honor, the record is undisputed on that. Citing to the record on appeal mr. Hurley states i am obligated. Another states i am obligated to comply with the Affordable Care acts individual mandate. Furthermore, the record on appeal 636 and 640, my clients are additionally injured by expensive coverage, loss of dr. Of doctor choice, decreased quality of care, and rationing of care. They also must incur the cost of reporting requirements related to the filing of their taxes and compliance with the individual mandate. In response to the appellants claim that the injury is selfinflicted, one only need to only needs to look at subsection a that mandates certain individuals shall ensure they are covered under Minimal Essential coverage. Noteworthy also are the exceptions which provide certain other individuals remain subject to the mandate but are exempt from the penalty for noncompliance. The aca contemplates the individual mandate carries the force of a command because categories of persons are subject to it without penalty. In the individual mandate yes, maam . Judge elrod it is your position that those people would have standing even if they were not buying insurance, if they were in one of those exempted categories . Like back at the time of the original argument, i believe Justice Kagan asked a question about that, whether or not people who do not have to pay the penalty automatically who are exempt, would they have standing . Mr. Henke there is still a command. It is a great point you bring up, your honor. I want to go back to the history of nfib and address the appellate argument that the harm was selfinflicted harm was selfinflicted. In the shared responsibility alleged bye choice appellants was not affected until 2014. And if i be was before. It was the individual mandate, not the penalty. In denying the governments motion to dismiss on standing, the nfib trial court correctly held the individuals had an injury, as did judge oconnor. This argument was carried through the 11th circuit and all the way to the Supreme Court, where it was addressed during the first day of argument and questions from both the chief justice and Justice Kagan. Justice kagan was questioning the attorney for nfib. Justice kagan asked, do you think a person who is subject to the mandate is not subject to the penalty would have standing . He responded yes, i think that person would, because that person is injured by compliance with the mandate. Justice kagan asks, what would that look like . What would the argument be asked to what the injury was . As to what the injury was . He replies, the injury, when that person is subject to the mandate, that person is required to purchase Health Insurance that is a forced acquisition of an unwanted good. It is a classic pocketbook injury. Judge elrod council, what do you say to those who might say or argue that the court did not actually make a standing . It would be considered a driveby standing. Some people use that colloquial term. So, what would you say to that . While there might be questions on a topic, it does not mean we have answered a question of certain way. A certain way. Mr. Henke we cannot say that the Supreme Court nfib did proceed forward to resolve the merits of the case. I believe it is implicit that it was resolving this question of the individual plaintiffs standing in the affirmative by reaching the merits after oral argument. After addressing this after oral argument. The trial court correctly did so here. If you look at the case history, of nfib, this is ground that has been well covered. Individual plaintiff standing has been addressed and resolved. And again, going back to the text of the aca, the other sides choice argument is wrong because the choice language only arises in the construction. And a mandate was recognized as not being a choice in section 3a, when chief Justice Roberts found the mandate was best construed as a command to buy insurance. I would also like, your honor, to address a second task to second path to traceability, and that was addressed in the notice of Supplemental Authority that we filed last week with regard to the Supreme Court case versus new york. We already argued how my clients injury is directly traceable to the individual mandate. Point to the courts record on appeal 2770. Without the individual mandate, my clients would not be required, in violation of the constitution, to maintain specific Health Insurance coverage, nor would they be subject to an increase regulatory burden. But the Supreme Court recently upheld standing as a result of the predictable effect of government action. And that is in slip opinion page 11. Traceability in the department of commerce was met when third parties reacted in predictable ways to the citizenship question, even when they did so unlawfully. Here, the predictable reaction is lawful. Individual plaintiffs purchased underm coverage individual mandate legal command. New york relied on Historical Data to show predictable effect. In this situation, the 2008 and 2017 Congressional Budget Office reports conclude that some individuals will comply with the mandate absent penalties. If we were inclined to take that argument would that mean we would have to overrule our other opinions which might say that thirdparty causation is not enough to generate standing . Mr. Henke here what we have is even better, though, you have the direct evidence of the individual plaintiffs that is greater evidence to establish standing. Judge elrod so you dont need that census argument. Mr. Henke we dont need the census argument. But i think it bolsters that traceability argument. In explaining how it is fairly predictable and supports the testimony of my client that the clients that the command in the statute is what they have done, it is not the predicted effect, it is what happened. And the result of that is that they continue to maintain minimum essential coverage because the law says they have to. Again, going back to the record, which was not disputed in 637 and 641. With that, your honor, unless there is additional questions, we request that you inform the trial Court Judgment below in its entirety. Judge elrod are we going in a different order . Yes, we are, i am arguing rebuttal for seven minutes. Thank you. If i could pause for one second, this is why i became a lawyer, i hope you are enjoying yourselves as much as i am. Also i apologize, i was remiss before, like to introduce mr. Jeremy creaseberg. I have several points in response to the arguments that have been made. The first is, judge elrod, you asked the key question about, you mentioned the menus that would be struck down. Remember the kinds of provisions here that would be struck down if there is no severability is for example, the provision about when you can be denied, your charged more for preexisting conditions that provision that children can be kept on parents insurance until age 26. These would be struck down if there is no severability. Isnt the house the best entity to remedy, cant they put together a cafeteria style package of all these individual features that are so attractive, the ones you are talking about an popular in various quarters, cant they put them together and vote on them like that and pass all the things that and rid out the issue of severability here . It is the congress and president. I would start with that house. That is who you represent. The president would sign that , no, obviously not. That is the point. That is exactly the point. There is a political solution here that you, various parties are asking this court to roll up its sleeves and get involved, isnt that exactly the point . Isnt that why the senate is not here . Mr. Letter no, your honor. Judge engelhardt . Why is it why does Congress Want the article three judiciary to become that taxidermist for every legislative biggame accomplishment that congress achieves . Congress can fix this, it can fix it after nfib. Mr. Letter yes, your honor, that same statement would be true in every severability case and yet we know the Supreme Court has said to you, congress does not have to fix this. You can fix it and the Supreme Court has told you how to do it. Maintain everything you can i that can stand on its own and be constitutional. The Supreme Court has ordered you to do that. There is another option. Every single severability case is going to, the same question could come up. If i might add one more thing, Supreme Court cases are legion. He said you should draw importance from the fact that congress has not passed a new statute. The Supreme Court has said over and over again that is wrong. You cannot and should not draw any meaning from that because the members of congress and the president might feel that the law is absolutely clear and therefore, there is no need for further legislation right now. If this court does what the Supreme Court has instructed, you will keep in place the overwhelming percentage. I take your point, your honor, and i take it this can be frustrating but remember, every severability case has that same issue. The attorney from the department of justice, we have been friends for many years but what he is arguing here, the doj position makes no sense. There are a batch of provisions in the Affordable Care act that you cannot divide up by state. For example, the Affordable Care act divided for best provided for a system of biosimilar drug approvals so the fda would approve certain drugs that otherwise it might not have. The fda is going to approve drugs for sale in texas and arizona but the opposite. Approve drugs for california and other states but not for sale in arizona . We are not to that point yet. Right now, it is a partial Summary Judgment, and so we are not to the point for the federal government has to parse that out. We are to the point because the court issued an order, the court did not issue an injunction because the Justice Department said please dont, we dont like injunctions in situations like this and do not worry, we will apply the statute as your honor rules. I argued that for 40 years when i was with the Justice Department. That is our standard position. You cannot then turn around and say, someone did not do an injunction and we will say it has to go back to the District Court. The problem is go back for the courts to parse through all those. Mr. Letter absolutely not. Judge elrod the worstcase scenario, do you want to go back for the court to parse through all of those provisions you were just listing . Mr. Letter no, your honor. The District Court has already said the whole statute is unconstitutional and texas and the Justice Department has said that is absolutely wrong, that is so inconsistent, the severability doctrine. The districtardt court cannot do that . I thought i understood you in response to my question to say we are charged in terms of severability, we are charged with that responsibility. Mr. Letter i think i missed out misspoke. I miss misspoke. This provision will be applied in california but not texas. There are parts of the Affordable Care act judge elrod what about administerable. Mr. Letter absolutely cannot happen. Judge elrod california would like to go back to the District Court and say it does not apply in california, and that is what i was trying to say all along. Mr. Letter i believe we are in total agreement that we think this court has an obligation to now, the District Court has set it up and said now you have the obligation to look at that and say that is not what the law says, that is not what the Supreme Court has instructed. We do not want this to go back to the District Court, the court has already ruled judge elrod it has to go out to the District Court. If some other thing does not happen in some appellate proceeding along the way, it it would not automatically have to go back to the District Court. Mr. Letter what we believe this should do is you should say the District Court erred. The main thing we think you would do if you would uphold what congress did or the minimum again, you would say the individual mandate is struck down, but that is so clearly severable because the text of the 2017 act made clear the rest of the statute remains in effect. Judge elrod that would go back to the District Court, wouldnt it . You would have to fax the District Court and have your rep wrapup proceedings and all the things that would normally happen. Mr. Letter it is partial because i believe the rest of it depends on that. If you say you hold there is no standing and the case ends but if you hold that the rest of the statute is severable, i am not sure what else the District Court would have to do that. That would be the judgment of this court. I am guessing that texas or they would take that to the Supreme Court. I dont believe this must go back to the District Court. Judge elrod if we held hypothetically that it was severable, we would say District Court, do your best severability in the first instance, take out your blue pencil. Mr. Letter you would do that. Judge elrod why would we have to do that . In any other normal case you would send it back to the District Court in the first instance to make the best stab at trying to implement the ruling that we made. That would either normal proceeding in 100 cases we have for this month. Mr. Letter it is also normal for the court, the Appellate Court says the law directs that all the rest of the statute based on and i want to emphasize we are talking about the text, the 2017 statute that all the rest is severable. That is what we think. If you were going to find and strike down the individual mandate, that is what you would do. We think you have to do that. So there would not be any reason to send that back to the District Court to say go line by line and figure out which part is severable. You would have ruled the Supreme Court doctrine says no. It has to be evident that congress would not have wanted it under the 2017 act, that clearly cannot be done. Judge elrod we need to wrap it up. Mr. Letter i am sorry. The last thing i want to say, we talked about the severability. There is no inseverability clause. He is referring to the act. In 2017 congress made clear that if you get rid of the mandate and yet leave the entire rest of the statute in place. Judge elrod including the findings, right . Mr. Letter they apply to a different statute. There is no reason to repeal the findings. Life has changed and it is a different statute. The 2017 statute. Thank you. I will try to be brief. There are three points i want to address. The first is about our state standing. As i understood the federal government supplemental brief, they did not say the remedy they were closing would not harm us. With respect we cannot show that without knowing the scope of the remedy they are proposing. They say the remedy should only apply to the provisions that injure the plaintiffs and having to explain how they would administer this in some parts of the country but not others. The second point picking up on mr. Letter left off, the findings are not in and in severability clause. It is an enforceable mandate that had a several hundred dollars tax and were adopted for a different purpose. That memorialized the congresss views that enforceable individual mandate was a proper exercise of the Commerce Clause, that may have also reflected the 2010 congresss view that made enforceable individual mandate was an important and necessary to the proper functioning of the individual markets. In 2017 Congress Drew a different conclusion and we know that by looking at the text and what they did in that act was make the minimum the individual mandate unenforceable. Congress had no need to repeal the severability repeal the findings in order to express its intent on that point. It just had to act. My final points, your honor, the court can hold the individual mandate is the valid or you can hold it is not enforceable. It doesnt matter. That is exactly what congress did in 2017. It made the mandate unenforceable. It is not open to this court is to use that action as the basis for ordering what the 27th congress repeatedly refused to do and that is repeal the Affordable Care act. Judge elrod california is not harmed if the court were to say the mandate is stricken, is it . Mr. Siegel the only ruling is a declaration that the individual mandate is unconstitutional and not enforceable. We are not harmed by that ruling. If there are no further questions, we respectfully ask you reverse the courts judgment. Thank you very much. Judge elrod we appreciate your arguments in this very complex case. I appreciate all of your preparedness today. Thank you. The court will stand in recess until tomorrow morning at 9 00 a. M. Our cspan bust team is traveling the country asking what issues should president ial candidates address. I feel like the secretary of education, whoever has that position should be qualified for that position. By doing this they would make more progress. Would like ton i see the candidates answer this , where do ourn rights come from . One issue i want them to address is Mental Health. We see Mental Health in the news after gun violence. Most Mental Health sectors do not contribute to that. I suffer with anxiety and depression, and i am not getting the best care i need, and any candidates to do more to help people like me. I would like the candidates to address the involvement of pharmaceutical companies in health care. Ofcifically the advertising pharmaceuticals on television. Thatu could please address in a specific way, it would help every american. Voices from the road on cspan. Thursday night, the pbs news hour and political held the sixth and last president ial candidates debate of the year. Seven candidates took part in los angeles. Cspan will reair the debate friday night. Go shopping and see what is available at the cspan online store, including our new campaign 20 tshirts, sweatshirts, and hats. Go to cspan store. Org and browse all of our products. House Speaker Nancy Pelosi spoke to reporters about yesterdays vote to impeach President Trump for abuse of power and obstruction of congress, and a timeline
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