Transcripts For CSPAN Health Care Law Supreme Court Oral Argument 20240711

God save the United States and this honorable court. We will hear argument this morning in case 19 840, california versus texas and the consolidated case. Mr. Chief justice and may it please the court, this Court Construes section 5008 of the Affordable Care create choice. Either obtain the Health Insurance or pay the tax in 2017, in 72 congress did not change sub a or sub b. 5000 a still presents a choice. Either by insurance or do nothing. That provision does not harm anyone and it does not violate the constitution. Respondents insist the 2017 amendment requires the court to tear down the entire aca. [no audio] instruction of the same tax. It is at odds with how congress and the same president understood the amendment and would be understood to do exactly what this court said would be unconstitutional. Second, respondents argue that provision isgle unconstitutional, then every other provision must fall. The starting point of every remedial analysis would be the strong presumption in favor of severability and here, the structure confirm that opinion. After a year of debate, congress made a single surgical change. It made 5000 a unenforceable by eliminating 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 fact if 5000 a is held to be unenforceable. Mr. Chief justice, i welcome the courts questions. Mongan. You, general is someone who does not follow the mandate and purchase insurance violating the law . Not on our view, your honor. We think this is an inoperative provision and there is no legal command. Except the court were that theory it is a command, they still cannot establish standing because there is no right or any 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 has to fill a questionnaire asking whether you have ever violated a law, which box should he check . I think their view is that if this is a command, they would have to say they had violated the law. If they alleged they were applying for such a job and the employer was going to use such a warm, then that might be a viable theory of standing. There is no such obligation standing here today. Chief Justice Roberts lets say Congress Passes a law saying everybody has to mow their law once a week and they even make a lot of findings about why that is a good thing. It makes the country look neater. You get fresh air if you have to do that. It supports the lawnmower business. But the fine for violating it is zero dollars. Do they have standing . The neighbors will see they are not a bangle wall. The objectives of congress will not be fulfilled. Re willr words, the certainly be injury to that person. I wonder if under your theory that person would not be able to challenge the law. General mongan i do not think they would be on the theory they have altered their conduct to comply with the law and they suffered some injury. I think that follows from this that it is not enough to say i am injured by complying with the law. You have to show some real threat of enforcement. Here of course, congress eliminated the only enforcement mechanism in 5000 a. Chief Justice Roberts thank you, general. Justice thomas. Mongan,thomas general putting the chief justices question in todays terms, i assume in most places there is no penalty for wearing a facemask or a mask during covid. There is some degree of if one does not wear it in certain settings. Thatif someone violates command . In similar terms to the mandate here but no penalty, what they have standing to challenge the mandate to wear a mask . General mongan your honor, i think under this courts cases, the question comes down to whether there is a real threat of an oarsman. If it is just that they threat of enforcement. If it is just their command, i do not see at as being consistent with poe and holder that has look to whether there is a threat of possibility of enforcement. Justice thomas is that consistent with for example, our First Amendment jurisprudence . Even without a penalty, you could have a Chilling Effect . General mongan i think there may be other legally cognizable theories of injury the on the type articulate a by the plaintiffs here, which is quickly focused on, i am complying in this command in a way that harms me. In this case, we are not in the first minute realm but the states have suggested there might be some theory of harm from the effects of thirdparty conduct. That might have been a viable theory but their problem is they have not established with evidence that is required on Summary Judgment that the amended 5000 a, which is entirely toothless, does inflict such a harm on them. Justice thomas are the parties here, the respondents here they are arguing as we have had in the first aca case, they are arguing this mandate in combination with the other provisions really caused their injuries. Is we haveious here become accustomed to deciding this at the standing stage. This looks somewhat like a statutory the severability issue slick a statutory discussion matter. Explain to me why we would determine severability at the standing stage . General mongan i do not know that the court normally does determine severability at the standing stage. I suppose it could do that in the process of evaluating the federal governments theory of standing by severability. We do not think this is a theory that has ever been endorsed by this court and we think it would create serious attention. Be analyzed would after the ruling of the legality on the provision. Justice thomas i see my time is up. Thank you. Chief Justice Roberts Justice Breyer. I will follow up on Justice Thomas question. How do you respond to the United States theory of standing . General mongan it is a novel theory. It has never been endorsed by this court. It would create a fairly massive loophole. Anyhe aca contacts, american who is regulated by any would be of the aca able to challenge 5000 a without showing that provision actually harmed them. I do think it is intentioned with this courts article three president. First, the court has indicated that a plaintiff needs to establish standing for each claim and they need to show that they are injured by the allegedly unlawful conduct or provision. We see plaintiffs proceed without doing that. Second, it would create real concern about advisory opinions because as i understand there theory, you would have to accept the provision is inseparable at the standing stage. Then you proceed to adjudicate the legality of the provision. After that, you would get to severability. Most provisions are severable so it would lead to a situation where courts are adjudicating the legality of provisions that do not harm the plaintiffs before them. Justice breyer thank you. Chief Justice Roberts Justice Alito. Texas has offered evidence the Affordable Care act requires calculate medicare medicare eligibility. What this method of calculation has greatly increased in numbers of person on medicaid in texas i think by about 100,000 persons. Why cant texas seek a declaratory judgment it is not required to calculate eligibility using that method . General mongan i think the problem is they need to show they are injured by the provision they actually allege is unconstitutional and that provision your honor referenced is separate from 5000 a. It would remain on the blogs even if 5008 were wiped away. A on the books even if 5000 were wiped away. Theoryt see how texass about other provisions of the aca can there is logic to that theory of standing. Why is it conceptually unsound . General mongan we think it is unsound because it then would allow the court allow a party to come into court and challenge any aspect of a large statutory scheme by asserting a theory it is inseparable from one provision that harms them. If the court wanted to create that type of rule, that would just bring us to the merits. The problem with the merits theory is the plaintiffs here are positing that congress created the very command that this court held. That is not a plausible construction when you consider that congress was well aware of this courts statutory construction. It relied on that choice creed in construction and used it to render the provision inoperative. Justice alito if texas were to fail to use that method, what consequences would follow . General mongan if texas were to fail to use the method for calculating medical eligibility . Justice alito yes. General mongan i suppose it is possible the federal government could pose some Justice Alito i would ask a related question about what would happen if the irs attempted to assess penalties on state employers for failing to comply with the reporting requirements in sections 6055 and 6056 . Hasd the state argue it more obligation to follow that because they cannot be severed from the individual mandate . General mongan i suppose it is possible that a defendant could try to advance that as a defense in response to such a claim, but that does not mean as a plaintiff they could go into court and establish an article a thatnjury tied to 5000 is sufficient to exercise the courts jurisdiction. Chief Justice Roberts Justice Sotomayor. Please tellmayor me if i understand your point correctly, which is if they have claims challenging the provisions that Justice Alito asked about, they should have brought that challenge, not a challenge based on the individual mandate, correct . General mongan that is exactly right. They have discussed the costs of that flowed from the aca. They have not advanced any theory as to why those provisions are unconstitutional. Justice sotomayor thank you. Why me your best argument it would be unreasonable or not legally enforceable for plaintiffs to read the individual mandate as a legal command. You answered Justice Roberts hypothetical but i am asking, are you accepting that hypothetical or that assumption. Assumption. What is your best argument that it is not a command . General mongan we are not, your honor. This court authoritatively construed 5000 a and nfib as not a command. It said it was a choice between buying minimum coverage as set out in sub a or making the tax payment in sub b. That is a Construction Congress relied on when it amended the position. Congress did not indicate it wanted to depart from that Choice Construction. Rather, it relied on the Choice Construction and zeroed out the taxes as a means of making the position inoperative. I think this is a critical point. Congress was entitled to rely on this courts 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 Justice Sotomayor that i have no quarrel with. But why should we presume that a common citizen who wants to comply with the law will not make that assumption . Should make that assumption legally. General mongan to the extent that a they would consider this courts authoritative and prominent holding about this provision in nfib and they would 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 one last question. I understand your standing argument involving the state, but are you arguing that the states are not harmed by the cost of more people enrolling in insurance as a legal model legal matter or is it that as a factual matter, you do not think they have demonstrated they were harmed . General mongan as a factual matter. It was their burden to introduce specific facts showing amended 5000 a drives up their cost. They put in 21 declarations, but they did not address that point. Justice sotomayor how do you deal with their argument that you have the burden of coming forward with evidence . General mongan i just dont not i just do not think that is consistent with evidence. Burden. E plaintiffs Justice Kagan continuing on this point of the states standing, why wouldnt it be right to Say Something like, you can expect that as a result of this log, more people will buy insurance, even when there is no enforcement mechanism . Just the force of law itself will encourage people to buy insurance . Texas is now saying that costs us money. Theosts us money because of effect on programs like medicaid and because we have to send out these forms saying you have bought insurance. I think those are to arguments. Justice kagan we think under this courts precedent, that might be enough at the pleading stage but it would not be sufficient at the Summary Judgment stage. If we are mistreating those cases, we would be happy to lose on the issue of state standing and litigate this case on the minimald have texas showing set the bar. We do not think that your cases allow it. Justice kagan what case does not allow it . General mongan i think it is a general principle that a place of a plaintiff must adduce specific facts. That we would think would require something more than speculation or supposition. Justice kagan how about on the individual plaintiff side . This is going back to the chief justices questions. Why should it not be the force of law itself, a person can say if the law says i need to do something, then i have to do something. Why isnt that enough to create standing . General mongan i understand that point, but i think that is contrary to what this court has said in cases like poe. Doctor plaintiff that says i cannot give advice to my patient and i think the law is unconstitutional and it harms me because i am not able to give this advice and the court said that is not enough. You also have to show a real threat of enforcement. I think that would be a departure from what this court has indicated before and it might open the door to a number of additional preenforcement challenges. Justice kagan thank you, general. Chief Justice Roberts Justice Gorsuch. Uptice gorsuch let me pick where Justice Kagan left off. The United States could still bring a civil action to enforce the mandate under 26 usc 7402a is that your understanding as well . Is not myngan understanding. I think this court made clear of only legal consequence not purchasing insurance is the requirement to pay a tax and congress has appealed or zeroed out the tax. There are no remaining legal consequences. Suppose gorsuch lets for the moment you are mistaken and 702a would allow enforcement action. Wed that change your view about would that change your view about the individual standing . General mongan potentially, although i think what this court has looked to is not only the possibility of an enforcement action but whether there is a real threat of enforcement. I do not see how they have established that because the federal government has indicated there is no further requirement for individuals to purchase Health Insurance. At least at the highest levels of the executive branch. That is the signal that is sent out to the country. Jusftice gorsuch so individual americans would have to wait an enforcement action before bringing a lawsuit challenging a federal statutory demand . General mongan that is our understanding of your cases, your honor. If we are mistreating the standing cases, we are happy to litigate this question on the merit because we do not think they have any plausible basis for reading this as a command. Would be happy to have the court reach that question. Jusftice gorsuch with respect heard states, i thought i you agree the theory of standing that there is raised cost on enrollment based injuries or compliancebased injuries could be enough to secure a standing. It is just a failure of proof at the Summary Judgment stage. Is that a fair summary of your position . General mongan that follows from department of commerce. States can establish standing if they actually identify specific showing protectable choices by third parties are going to costs. P state unlike the census case where we had lots of expert declarations and specific facts and details showing that connection, texas has not introduced any specific facts indicating that amended 5000 a what inflate a concrete harm. Jusftice gorsuch if all we need is substantial risk of a fact of Government Action on the decisions of individuals, why isnt the Congressional Budget Office report stating that even after the penalty is removed, a small number of people will enroll because of the willingness to comply with the law . It follows from that there will be increased cost to the states. Theral mongan i think report from 2017 is the best thing they have going for them on state standing. We do not think it is sufficient. It is a single sentence. They did not offer any data backing it up. Jusftice gorsuch do you disagree with that . General mongan i do not think we have any basis to agree or disagree. It is an uncontested fact . General mongan i do not believe that is right. It does not say anything specific to the plaintiff states. It does not say anything specific to plaintiffs are eligible for health plans. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh good morning, general mongan. To pick up on individual suppose questions, Congress Passed a law requiring every american who lives in a house to fly an American Flag in front of the house. There is no penalty. The question then is individual standing. Under lujan, you are the object of the regulation as a homeowner. It is a forced acquisition of an unwanted good or service. Why is and that enough to give you why isnt that enough to give you standing knowing some people are going to do that simply because congress requires that . General mongan i think if there theory was identical to what the individual plaintiffs advance here, simply that we are actively complying with this and it is causing us harm, that would run into a similar problem with the polling of the poe line of precedent. We are not disputing that plaintiffs can try to advance those types of theories of injury. On the cboanaugh report just as gorsuch mentioned, do you disagree some people will follow the mandate and purchase insurance solely because of their willingness to comply with the law . General mongan i did not have a basis for agreeing or disagreeing with it. I think it is unlikely as the judge below noted individuals who would not already take advantage of the generous educated generous Medicaid Programs would do it because of 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 on was constitutionally impermissible as it was telling the American People he was trying to get rid of or make inoperative this provision. Justice kavanaugh on the point you mentioned that allowing individual standing here might open the door, are you aware of any other examples in the u. S. Code where congress has enacted a true mandate with no penalties . General mongan i am not aware of that and we do not think that is what congress did here. Ice kavanaugh i think was just wondering if you were aware of an example. Claim,merits of the under nfib, it was justified under the taxing clause, but it now does not raise revenue. How do you respond to that point . General mongan what congress did here was to create an inoperative provision. It does not require anybody to do anything. Congress has routinely created an operative provisions. It has done so since the founding and they have not been viewed as constitutionally problematic because they do not alter legal rights or responsibilities. Justice kavanaugh thank you. Chief Justice Roberts Justice Barrett. Justice barrett what should we make of the fact that congress did not appeal the provision shared you are asking us to treat it as if it has functionally been repealed but that is not what congress did. Does that matter . Congressongan i think construed how it had 5000 a as a choice. That was a reasonable thing for it to do. It was operating under the reconciliation procedure. That allowed it to make the change compliant with the byrd rule and cbo had told it there was no material difference between repealing the position and zeroing out the tax. Justice barrett let me ask you another question that is related to some of the hypotheticals you have heard so far. The chief asked you about a mandate some of the long and Justice Thomas asked you about forcing people to wear a mask. As iif in this case understand it to be the case, you have to certify whether you have complied or not and the government keeps track of that. The government keeps track of whether you wore a mask or whether you purchased Health Insurance. Does that change your view . General mongan i am not sure there is an ongoing certification requirement. Perhaps that would change the analysis. If we get to the merits, then i not ant is plain this is operative provision and there is no ongoing command. Even if that would establish standing, it would not be enough to allow the individuals to prevail on the merits. I would like to make the point that if the court were to disagree with us on the merits and hold that this is a naked command, then the only proper remedy for that would be in order making the provision unenforceable and holding it is invalid. That would completely address the problem. What would be deeply problematic for the petitioner states and the rest of the nation is if plaintiffs were allowed to leverage this single and operative provision to tear down hundreds of other provisions. Justice barrett let me return to the question on the merits. Bnc to require95 toand see do require certify whether one has maintained the minimum coverage necessary. Is that correct . General mongan the states to have to send out the forms. They serve continuing purposes related to the premium tax credit and the employer mandate that have nothing to do with 5000 a. Those are costs they would continue to have regardless of whether 5000 a on the books or not . Justice barrett and individuals do not have to certify whether they have maintained coverage. General mongan the irs makes clear there is no longer an obligation to check the box whether they have maintained coverage. The intent of the mms was to make 5000 a operative 5008 and operative and unenforceable. The current statutory framework makes clear congress wanted every other aca provision to remain in a fight if 5000 a were unenforceable because that is the precise Situation Congress created. And severability theory would do violence to congress intent. It would cause enormous regulatory disruption, append end thekets, up markets and cost of the states tens of billions of dollars during a fiscal crisis. There is no basis of that result in a text, intent or precedent. Chief Justice Roberts thank you, general. Thank you, mr. Chief justice. Respondents are asking this court to do what congress refused to do when it voted down repeal of the aca in 2017. Their argument is untenable. The 2017 congress did not convert to a command. The amended statute does not require anything of anyone. Misconstrues 5000 a as a mandate, it is not that anless thought unenforceable mandate was so vital that it validation should doom the aca. There is no way congress would have preferred an outcome that throws 23 Million People off their insurance, ends protection for people with preexisting conditions. The arguments take constitutional adjudication as a game of got you to a whole new level. This is not a game. Requirerts precedents a respect for the constitutional law of congress and those precedents inform the outcome respondents seek. Chief Justice Roberts eight years ago, those defending the mandate emphasized it was the key to the whole act. Theything turned on getting money from the people forced to buy insurance to cover all of the other shortfalls in the expansion of health care. The briefs here on the others go over all that. Without representation, everything is fine without it. Why the bait and switch . Saidongress wrong when it the mandate was the key to the whole thing, that we spent all that money talking all that time talking about broccoli for nothing . Mr. Verrilli in 2010, i do not think there is any doubt congress made a productive judgment in what was needed to create an effective market. There were a lot of carrots. Limited copays, no annual or lifetime caps. There were generous subsidies to draw people into the market and it was easy to enroll because of the changes. There was also a stick, the tax payment if you did not enroll. I do not think there was any doubt the congress thought that was important. It turns out the carrots work without the stick. That is the judgment the congress made in 2017. That is what the cbo told convert told congress. Back and said whether you zero out the tax or you appeal the mandate, the effects on the market will be the same. The market will remain stable over the coming decade. If one looks at the amicus briefs filed by the Health Insurance industry, if one looks at the ama brief, all of those briefs are confirming that judgment was correct. It turns out the carrots work without the stick. Congress is allowed to learn from empirical experience in the world and adjust its policy choices. That is what happened here. Chief Justice Roberts general mongan was asked whether the burden on the state was enough to support standing. Think that burden is sufficient . The paperwork burden, essentially. Mr. Verrilli no, i do not because the paperwork burden flows from provisions other than section 5000 a. Unless the court were to accept the standing through and severability theory, i do not think there is a basis for finding standing on the basis of that. Thank you mr. Chief justice. Counsel, Justice Barrett asked whether or not just eliminating the penalty, the act wasnt changed, the mandate provisions were changed. Just the penalty was eliminated. Was that all that was necessary centralality he of this provision . When you argued this case as a cheese justice some years ago, this provision was the heart and soul of the Affordable Care act. I know the assessment has changed, but the provision hasnt changed with the exception of the penalty. Would you explain why that penalty provision was so tralts of the send this provision . It guess to the heart of the receiverability question. The argument we are making is the continued existence of 5000a even though it is unenforceable is still central to the operation of the act such that con depress would have preferred that the entire act come down if the provision was struck down. There are four reasons that cant be right. Second, Congress Asked the c. B. O. What would happen if they repealed what, would happen if they zeroed out the tax, and the c. B. O. Came back and said the effect on the market would be the same either way. In other words, there would be no material difference between zeroing out the tax and flatly repealings 5000a. That is the context in which congress acted here. Third, the history is quite leer. The president , the congressional leadership, the bill sponsors and committee chairman, they were all shouting from the roof tops that they were repealing the mandate and giving individuals complete flexibility in terms of purchasing insurance. And finally, even if you thought that Congress Really did have an interest in continuing moral suasion, that couldnt mean they would want to bring the whole a. C. A. Crashing down. In contrast to here, you had evidence that congress wanted the cfpb director to be independent of the president. There was evidence. But the court i had made the judgment there that congress would not have preferred to see the entire cfpb come crashing down. That reasoning applies strongly here. Thank you. Justice, can you hear me . The question about eceiverability unless people buy insurance under this mandate, the other provisions such as you dont have to worry about preexisting conditions, et cetera, wont work. All right, why isnt that fact i am sorry, Justice Alito . Something happened. My machine didnt work. Breyer was justice still on his time . No, Justice Alito. Thank you. There seems like deja vu all over again, but let me ask you this question about the theory of standing by severability. Suppose there is a very simple statute. It has provisions, and ab. I am hurt by b, i am not hurt by a. A is unconstitutional. The statute has a clause that says if a falls, b falls too. Under those circumstances, by lack standing to challenge a . Well, that hypothetical definitely tests the limits of our objection of standing through severability, and i think it would be hard to maintain that position in the fails of a statute like that. What i will say, your honor is this, is what it points up is that if the court is going to hold up the standing of inseverability for the first time it, ought not to do so combined with a presudges of inseverability at the standing stage. Even in situations like the one your honors hypothetical describes, are going to be very rare. Severability will be the outcome. If one pretusnamis inseverability, even in cases like this one without an inseverability clause, then i think that is, as general mongan identified, an open invitation to advisory opinions. You are going to grant standing injury on the provisions of b and hold a unconstitutional, and the challenge doesnt get any support. If the court thinks that standing through inseverability is a valid theory of establishing article three injury, that ought to come with an analysis at the standing stage of the severability issue. What you have said about hat congress thought in 2017 perhaps illustrates the difficulty of trying to identify anything that was thought by the majority of congress other than what it says in a law. A lot of people, a lot of members in 2017 may well have thought that eliminating the penalty or the tax would not cause any harm, and the whole act would continue to function well without it. But others who voted it may have done so precisely because they wanted the whole thing to fall. I dont know what we can make of what was done in 2017 along the lines of what you have said. Your honor, i think that question points up the wisdom f the analysis of the a. C. A. Plurality, statutoryy context. I dont think it would be an appropriate thing for the court to do to assume there were members of congress who actually acting in violation of their oath to uphold the constitution by voting to a provision they knew to be unconstitutional in the hochevar of bringing the law down. That is not a premise the court ought to indulge in this case. Applying the object ichiro factors, we know that congress zeroed out the tax penalty, ich was a strong signal that congress thought 5000a was needed to play any significant role in maintaining. Markets Justice Breyer. We apologize for the audio difficults and back to you. That is all right. Not a problem. Go ahead. Just says sotomayor . Councils, annual i asewelling your annuals to be thabeet given a choice between or among, because there could have been my choices, between invalidating the entire a. C. A. And just zeroing out the texas, that the 2017 Congress Choice was to just zero out the tax, correct . Yes, that is manifest on the record, your honor. There were efforts to repeal the entire a. C. A. They failed in the senate. They were voted down. We know that effort of repealing the entire a. C. A. Was vomented down, and the only change was zeroing out the tax. So if the choice is, yet again after nfib declaring the original mandate unconstitutional if one sees it as a command, the 2017 congress has already told us that it doesnt want the rest of the act to fall, correct . That is certainly our things, your honor, and it just would be utterly inconsistent with Everything Congress had before it with the judgment it made and with the wide announcement to the public that this amendment effectively repealed the mandate. Counsel, there is an intuitive feeling that if the individual mandate is struck down with respect to standing in the states, that they would ave less reporting costs ecause or less enrollees in their medicaid and chips program. That is their argument about standing, correct . Aside from inseverability, that is the only direct injury they claim. Would you adrills that argument . Your cocounsel for the state seems to say there is no evidence that that is true or false. But i thought many of the briefs showed that it was a faulty premise for other reasons. Do you agree with that . Yeah. There is definitely no evidence. General mongan went through that. It is correct. It was Summary Judgment. They had a burden and didnt meet it. Their argument boils down to what they claim is common sense. Look, people are going to read this mandate, and they are medicaid to ll, in satisfy it. But i really think it is the opposite of common sense. The theory here is there were people out there who werent 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 gets rid of the tax consequence. But look there still seems to be a mandate, so i am going to go enroll in medicaid now. Justice kagan . Mr. Verrilli, i understand our view that the empirists of how this low works have changed since 2010 and 2012. But we still have some relics of the old view, which is the individual mandate was the key to everything, some relics of that in the law. I point to what the playoffs sometimes call the inseptemberability in sprabblet provision. I guess i am wondering do we do that. The fact that that finding still exists in the law . Does that constrain us in any way . Well, it is clear that it doesnt overcome the strong presumption of severability because it is not an inseverability clause. If section 1809. 1 said if ction 5000a is declared unconstitutional, it would be inseparable. We dont need to that because the finding is not an operative rule of low. It is just a finding. The 2010 Congress View about the state of affairs that exist inside 2010 as a textural matter. The provision is addressing 5000a as it was originally enact inside 2010. That is, the mandate to perform insurance back the by the tax. Now the argument that my friends on the other side are making is that the 2017 Congress Must have continued to agree with that finding because it didnt repeal the finding. But the 2017 congress couldnt possibly have agreed that a requirement backed by a tax consequence was essential to an effect ichiro market because the 2017 congress eliminated the tax consequence. So i think that is very direct proof that the 2017 congress did not share the view of the 2010 congress expressed in the finding. Then this comes down to the question about whether you are going to strike this entire law down because the congress didnt go back and clean up that finding. But there was no need to klein up that finding because arcses i said, is not an operative condition of law and a predictive of the circumstances and what the trent congress thought would be necessary to create the mark. It talks about the requirement being essential to creating the market. And by 2017, the market had been created. It was up and running. C. B. O. Told congress it would continue to run in a perfectly reasonable way if you limb named this penalty. So i think the recommend pennant good morning, mr. Verrilli. I would like if we could just for a moment put aside standing and the remedial arguments and just focus on the merits. This court held that the mandate was a permissible exercise of the taxing authority because it produced revenue, at least some. That seems to have withered away, and we are left with Commerce Clause and the necessary improper clause, which the court foreclosed last time around. Can you help me with that . Sure. I think it might help for me to walk through how we see this, your honor. Congress started with the courts definitive construction of the law in nfib. The court takes this courts definitive instructions a given, unless it clearly indicates a desire to change it, and we dont think it did that. So it starts on the premise that it is a lawful choice. It was a lawful choice between intaining choice between maintaining the shurnt or paying the tax you can think of that inherent as the tax power, but it has to have the ability to take that step. What remains is a statute that isnt operative and doesnt have any consequences for anyone. So it is effectively like a statute that has been repealed, and that is why so many in congress and the president described it effectively as a repeal. Lets just put that aside for the moment. If we are focusing on the merits and assume the mandate is still something, it is on the books. What are the merits of that under the Commerce Clause, and why arent you clearly foreclosed by nfib . Well, we are not making an argument under the Commerce Clause because of nfib, of course. Our view is because it is an inoperative provision at this point, it doesnt have any more need for an newman ramented power because of the statute. The premise of your honors question is to disagree with that. To the extent the court thinks an enumerative power is justified. We can call it necessary and proper to the taxing power because it levers the framework of the taxing mechanism it play in details it wants to renew it in the future. Are good morning, mr. Verrilli. Assume standing for purposes of these questions and on the merits, the mandate as currently structured seems difficult to justify under the taxing clause for the simple reason that it does not raise revenue among others. T is hard call it a tax now. You cant justify it under the customer clause because five justices anfib said you cant. You were on that . It is the one we made in our brief, your honor. The Congress Says the way the law exists now, congress has maintained the structure that existed before the zeroing out of the tax in 2017 such that it should congress decide in the future that it needs to reimpose a tax, that it doesnt need to engage in a wholesale rework of the law. It can step back in and change the number again. In that respect it is not entirely different. I am not saying it is the same. It is not entirely different than a tax law that Congress Enacts where the tax is suspended for a number of years. Even if the Court Disagrees with us here and fien the court thinks sorry to interrupt. Lets assume for the sake of argument that i dont agree with that, and we get to severability. Up tend to agree with you that this is a very straightforward case for severability. Meaning well exercise the mandate and leave the rest of the act in place. One of my questions is 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 . Well, i thought the amicus in 2010 made very strong arguments in favor of that result. But i do think the relevant point of inquiry was what did the 2017 congress think . What would the 2017 congress have preferred in the language of law and the aapc opinion . I think the answer, the objective answer to that is quite clear, that the very same congress that zeroed out the tax, and therefore removed any conomic incentive, any economic swas oinch n to get insurance. It couldnt be considered essential to the operation of the overall system. Thank you. Justice barrett . If the Court Construes a statute in a particular way in order to avoid a constitutional question, wouldnt congress be free to come back and say no, no, no, that is what we meant . And in this details we did want to rely on the commerce power . In other words, why would an avoidance construction after statute Lock Congress in . Neither an avoidance construction nor a straightforward construction would Lock Congress in, your honor. I agree with that. But here i think but i do think the presumption applies either way. Once this court has definitively construed a statute, that is what the statute means. The court assumes that Congress Takes that meaning as a given and can rely on that construction by the court when it amends the statute. And absent clear evidence that congress wanted to depart from the courts definitive construction, the presudges is the definitive construction stays in place. I do think that has to be the case here because the only way to make sense of what congress was doing and what everybody involved in this row process said congress was doing, was they assumed that the choicecreating structure that was the kevin itf construction of the act after nfib, and after zeroing out the tax, they relieved any perceived need by anyone to purchase insurance if they didnt want it. Why would you say that when congress zeroed out a tax, it was no longer a tax because it didnt generate revenue. So congress was presenting it as a mandate which would have to be justified by the Commerce Clause . I think for the reasons, i said, your honor. I do think the statements bite legislators and the president and everyone else i know it is legislative history in a sense. But i do think there is wide agreement that those kinds of statements can be looked to as evidence of what of 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 ons and wanted to impose a command, i assume somebody would have said that. And everybody said the opposite. A minute to wrap up, mr. Verrilli. Thank you. The Affordable Care act has been the law of the land for 10 years. The Health Care Sector has reshaped itself in reliance on the law. Tens of millions of americans rely on it for health care hurricanes they couldnt preseason afford to. Assume that congress put all of that at risk when it amended the law in 2017 is to atrinity to congress a recklessness that is both without foundation without reality and inappropriate. In view of all that has transpired in the past decade, the litigation before this court, the battles in congress, the profound change in our health care system, only an strarely compelling reason could justify invalidation of this law. The espinosa should be rejected. Thank you, counsel. General hawkins . Thank you plrks chief justice, and may it please the court. This case should be resolved on the basis of three operative provision thalings appear in the u. S. Code today. 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 to ensure that the mandate raidses no revenue for the federal government. The sthird a legislative finding enshrined in the text of the law itself declaring the mandate essential to the operation of the market playstation reforms that the a. C. A. Set out to achieve. Obama Administrations Department of justice described that finding as a functional inseverability clause. Under nfib versus sebelius, the mandate today is unconstitutional. It is a naked command to purchase Health Insurance and as such it false outside of congress enumerative powers. It requires this court to conclude, as did the District Court below and the joint dissent in nfib that the. Andate inseparable petitioners are asking this court to ignore provisions in the u. S. Code. They prefer to hypothesize about what various than legislators might have been thinking when they voted to eliminate the penalty provision and maintained the mandate. But that is an arlington that this court should set aside the contact text of the law. That gets things backwards as this court has confirmed time and again in recent years. There is no basis to ignore the words that Congress Enacted and that remain operative today. The proper course is to take congress at its word and declare the mandate unconstitutional and inseverable from the remaineder of the a. C. A. General hawkins, on the searches question, i think it is hard for you to argue that congress intended the entire act to fall if the mandate were struck down when the same congress that lowered the penalty to zero did not even try to repeal the rest of the act. I think, frankly, that they wanted the court to do that, but that is not our job. Well, mr. Chief justice, i would realizefully submit that it is this courts job to follow the text of the law as written, and i think it is critical that in 2017 congress could have excised the legislative findings in 18091, but it chose not to do so. I certainly agree with you about our job in interpreting the statute. But under the severability question, where we ask ourselves whether congress would want the rest of the law to survive if an unconstitutional provision were severed. And here Congress Left the rest of the law intact when it lowered penalty to zero. That seems to be compelling evidence on the question. I dont think so, mr. Chief justice. I think that what establishes, or at least one reasonable reading of what happened is that congress wanted to give the American People a tax cut, and it went through localities of provisions of the Internal Revenue code, cutting taxes here and there, and one place it found to give the people a tax cut was in 5000ac, but it wanted to keep that mandate in place because the mandate would still drive people to require insurance. Indeed it would have been reasonable for congress to conclude that simply having a mandate will lead people to sign up for Health Insurance. As originally ineakted, the Affordable Care act included grooms of people who are subject to the mandate but exempt from the penalty, including the very poor and members of indian tribes. I think that is an indication that congress believed that simply ordering people to do something would get them to do it, notwithstanding any penalty that may be attached. General, you talked about the findings in the legislation and treat them as if there were an inseverability clause. But it doesnt look like there is any severability clause in anywhere of the rest of the u. S. Code to me. There is certainly no magic words required for a severability or inseverability clalls. What we see in 18091 is a repeated emphasis by congress that the mandate is essential to what they were seek to go accomplish. This is not some fleeting reference in one prosecute vision information sub sections h, i and j, we see over and over again thank you, counsel. Justice thomas . Thank you, mr. Chief justice. General hawkins, i think 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 you could you comment on that a bit and just give us an understanding of what your injury is . Sure, Justice Thomas. We have offered seven different basis to conclude that the standing requirement of article three is satisfied. I would submit that the easiest path to confirm standing is through the injury that the states have suffered, in particular the c. B. O. Confirmed in 2008 and 2017 that simply requiring people to sign up for Health Insurance would lead people to do so, and it is reasonably likely based on that, that people will sign up for medicaid who otherwise would not have done so because of the command to do so. Now general mongan suggest thad we not put on evidence of that, and i respectfully disagree. We have put on the 2008 ant 2017 c. B. O. Reports, the individual after thes themselves, pages 73, 76 and 77. They confirm that individuals will sign up just based on a command to do so. And there are numerous state after thes including from mississippi, missouri and south dakota at 148, 154 and 187, talking about costs impose the by the mandate on the states. We see the increased Medicaid Enrollment set out in for example page 91 of the joint appendix, which is a wisconsin after. We would submit under demarment 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 of course cause at least one dollar in injury and satisfy the standing requirement. That is just our first of seven theories. I am happy to go through more. No. That is fine. I would like to move to at what stage would you determine inseverability . There is a lot of talk that we should consider this at the standing stage. But i think of statutory construction and something more suitable for the merit stage. But i would like your comment on that. Mr. Hawkins Justice Thomas, we think this court has described the inseverability analysis as part of the remedial analysis. We submit the proper course here is to conclude that at least one plaintiff has standing for any of the reasons we put forward, and then to conclude the mandate is unconstitutional. Upon doing so, we would submit that is when the severability analysis comes into play. Chief Justice Roberts Justice Breyer. Justice breyer turning to the merits, what do you say about many, many statutes i suspect that do have or could have statements do this, dont do that or do this, and they do not have any enforcement or effect . World war i. Defense statute. Buy war bonds. An environmental statute. Plant a tree. One of 1000 statutes commemorating something. Beautiful cities day. Clean up the yard. I mean, i can recall, or i believe just dozens and dozens of statutes were Congress Says something were normally we would say it is precatory. Now, are all the statutes suddenly open to challenge . I mean, are none of them . If so, you lose. And if it is in between, which ones are and which ones arent . Mr. Hawkins Justice Breyer, you asked whether they are open to challenge. I guess i would want to know Justice Breyer on the merits. 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 i dont know, you see the point, it is a merits point. Mr. Hawkins i guess i would want to look at the particular statute. We know from nfib that the government cannot order people to enter commerce. People who are not already in commerce. And if another statute is like that, then i think nfib would control 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. From all my examples. Now, no penalty. And 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 awful lot of statutes that will suddenly be the subject of Court Constitutional challenge. Mr. Hawkins Justice Breyer, we dont dispute that inherent in the nature of sovereignty is the power for the government to speak. And so we dont challenge the idea of truly hortatory statements or Congress Giving suggestions or recommendations. If the statutes can be read that way, then that might change my answer. And what we have here, and i think this is the critical difference, it is not some suggestion or some hortatory statement. It is the law of the United States of America Today that you have to purchase Health Insurance. And not just any Health Insurance, Health Insurance the federal government decided would be best for you. And that is certainly subject to challenge. Justice breyer thank you. Chief Justice Roberts Justice Alito. Justice alito can i ask you, i hope for two quick questions about your theories of standing. First of all, as to increased medicaid costs, because you are required to calculate eligibility based on modified adjusted income. What would happen if you didnt do that . Mr. Hawkins well, we dont know for certain because we have not tried. But i believe the federal government could bring some action against us, or somebody who should be eligible for medicaid under the aca but isnt because of the way we have done the regulations. I suppose they would be able to sue us. Justice alito would there be penalties . Does the Affordable Care act set out any penalties for failure to do that . Mr. Hawkins i dont know of a specific penalty or fine levied against the state in connection with a failure to comply with the magi requirements. Of course there are penalties that states can suffer in connection to 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 suggested is a tax for purposes of the antiinjunction act. So, how could that theory of standing survive the limitations imposed by the antiinjunction act . Mr. Hawkins well, the provisions in 6065 and 6056 flow from the mandate and are echoed in irs regulations. The 2020 instructions which were released recently say the states have to provide this information to the federal government about how they are covering, as employers, their employees. And that reporting requirement itself inflicts a pocketbook injury on the states. Those forms dont produce themselves. And our theory is that that pocketbook injury itself is enough to satisfy article three. I dont think that poses an aia problem. And indeed, those injuries, as the fifth circuit correctly held, flow from the individual mandate itself and are traceable back to the mandate. Justice alito thank you. Chief Justice Roberts Justice Sotomayor. Justice sotomayor counsel, i would like to understand that a little bit more, your last statement. As i understood the theory you explained earlier of your standing, 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 that 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. But you have to take it a step further. You have to prove that that small 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 is no penalty for it. There is no tax for it. At some point, common sense seems to be would say, huh . There is only a small number of people who would do it. That small number has to include medicaid and chip recipients to affect you as a state at all. And they would, once they are told there is no tax, enroll now when they thought there was a tax. Does that make any sense to you . Mr. Hawkins it does make sense to me under department of commerce versus new york. 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. And the standing theory in that case was premised on assumptions about people breaking the law. Our theory in this case, at least in part, is predicated on assumptions about people following the law. Justice sotomayor the problem is that your theory assumes that people are going to pay a tax and break the law by not buying insurance. But they wouldnt do it when the tax is zero. That makes less sense. But moving on from that to the substance, ok . In nfib, we said at least four times by my count that individuals cannot be compelled to buy Health Insurance under the 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. And it is unconstitutional under the tax clause. But i dont understand why you are entitled to greater relief says itnly 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 it could command you to do something we said it could not do. Again, does that logic makes sense . Mr. Hawkins it does based on the text of the law. The court, of course, in 2012 upheld Justice Sotomayor we said in nfib that we could not read the text of the law the way your clients want us to because it would be unconstitutional. Mr. Hawkins Justice Sotomayor, in 3a of the chief justices opinion, that part of the opinion notes that the best reading of the individual mandate is as a command to purchase Health Insurance. And in subsequent parts 3b and 3c, the chief justice explained that an alternative reading was fairly possible. That is what is missing today. There is no fairly permissible alternative reading of the law. And that leaves us with the conclusion in 3a of the chief justices opinion that the men andate is read as a command to purchase Health Insurance and that is unconstitutional. And the text of the law says that the remainder of the aca cannot work without the individual mandate. Chief Justice Roberts Justice Kagan. Justice kagan continuing on the merits, im not sure i understand the position. In nfib, we held that the aca was not an unconstitutional command. So i would think that that has to be the starting point. Now, since then, there has been a change, and in this change were congress reduces the penalty to zero, congress has made the law less coercive. So, how does it make sense to say what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force . Mr. Hawkins Justice Kagan, i would like to start with the premise of your question about the holding of nfib. That holding is an alternative reading of the statute. A savings construction predicated on the fact that, at the time, the individual mandate could possibly be read as glued together with the penalty provision Justice Kagan excuse me, if i might interrupt, that holding is what allows the aca to remain in existence all this time. So however it was it was four plus one or whatever that one said, the aca was not an unconstitutional command. Mr. Hawkins and 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 has changed is something that made the law less coercive, is what im suggesting. If you make it more less coercive, how does it become more of a command . Mr. Hawkins the law was best read as a command as 3a of the chief justice Justice Kagan you are disputing the premise of what we held in nfib, which has which i dont think you can dispute. But let me go on. 5000ae says that a class of people, and these are mostly poor people, who are subject to the mandate. Those people are subject to the mandate but have never had to pay anything. So do you think in nfib what we really should have concluded was that those people were subject to a command whereas everyone else had a lawful choice . Mr. Hawkins so i think that those people, the poor and members of indian tribes, at any point they brought an as applied challenge, they would have been entitled to prevail. Because your honor is correct. From day one, congress has been ordering them to do something which is beyond congresss commerce power. Justice kagan isnt that exactly backwards to say those people who never had to pay a cent were subject to a command when people who did have to pay, who felt the coercive power of government, were not subject to a command . Mr. Hawkins your honor, that is part 3a of the chief justices opinion indicating that the mandate is best read as a command. To some people, to many people, a savings construction was available at the time. But in 2017, congress effectively took these subsection e exemptions and expanded them to everybody. The result is there is no tax savings construction now available and we are just left with a command. Chief Justice Roberts Justice Gorsuch. Justice gorsuch i would like to pick up on that, on the merits. Mr. Hawkins, good morning. As i understood mr. Verrilli, his argument on the merits is it is necessary and proper to the taxing power. And that coercive authority is still in play. It is just that congress has chosen to set it at zero and once the flexibility of retaining that provision in law because it might choose later to increase the tax again. What do you say to that response . Mr. Hawkins i would say two things, Justice Gorsuch. Number one, this cannot be a tax because it does not raise revenue for the government and indeed cannot raise revenue for the government. In nfib, the court noted citing cases going back to the 1950s that the essential feature of raising tax is raising revenue. My second response is that if the necessary and proper clause were to somehow save that, that would be giving congress a police power. Everything is potentially a tax. And if congress could justify any legislation on the grounds that, well, maybe one day we will impose a tax, there would be no functional limit on article one powers. Justice gorsuch let me turn to the remedial question here, and if you could address it with respect to the individual plans. They asked for declaratory and injunctive relief. I guess im a little unclear who exactly do they want me to enjoin and what do they want me to enjoin them from doing . Mr. Hawkins the declaration, which was count one on which the District Court entered partial final judgment. The defendants include the United States, hhs, the irs, and their respective commissioners. And so the judgment would be a declaration that the defendants cannot excuse me, would be a declaration that the individual mandate is an unlawful and inseparable from the remainder of the act. Justice gorsuch we normally require some proof that we can remedy of a plaintiffs injury more concretely than a mere declaratory judgment. Mr. Hawkins well, here i think that Justice Gorsuch you have to show that an injunction would be available and this would be an anticipatory action. Mr. Hawkins two things, Justice 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 in our complaint is still pending in District Court. And that is our request for injunctive relief. And that is still a live issue before the District Court and we can pursue that remedy if necessary. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh good morning, general hawkins. Assume for purposes, my questions, that there is standing. Just assume that. On the merits of the mandate, before we get to severability, i ont to followup briefly Justice Breyers questions. My understanding might be a little different from his about the existence of other laws. I think when i asked general mongan, he agreed with me that there are no 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, but a true mandate with no penalties. Is that right . Mr. Hawkins i think it is, Justice Kavanaugh. I cannot think of anything, and it would make sense that that were correct. Because the Affordable Care act of course was an unprecedented statute. I believe that congress had never tried to do what it did here. Justice kavanaugh with our without penalties . Mr. Hawkins i believe that is correct. Justice kavanaugh then on severability, if the mandate i am 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. And looking at the severability precedence, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place regarding preexisting conditions and the rest. So the question to you obviously is, how do you get around those precedents on severability which seem on point here . Mr. Hawkins i get around them by relying on the text of the statute. Aapc, your plurality opinion for the court, recognized nonseverability clauses can be statement of congressional intent. And as i noted earlier, the obama Administrations Department of justice referred 18091 as a functional inseverability clause. In that statute, we have got multiple instances of congress insisting Justice Kavanaugh i am sorry to interrupt. But inseverability clauses usually are very clear. And we did indicate what they look like in aacp and we cited an example of what they look like. And Congress Knows how to write an inseverability clause. And that is not the language that they chose here. So i agree with you about focusing on the text, but im having trouble seeing that is the equivalent of an inseverability clause. Mr. Hawkins justice, we would respectfully submit that that would elevate form over substance. We see the mandate is essential to the large regulation of economic activity. In subsection i, it is essential to creating a Health Insurance market, and the same in subsection j. This is congress saying over and over again that the mandate is essential to the operation of the law. I dont 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 well, they did something to that effect in 2017, however. Mr. Hawkins well, 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 that requirement is essential. And it is worth Justice Kavanaugh in 2017, do you Read Congress as having wanting to preserve protection for coverage for people with preexisting conditions . Because it sure seems that way from the record and the text. Mr. Hawkins your honor, we would submit that 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. And indeed, Congress Certainly could have excised these findings. We have seen congress amend legislative findings before in cases like lopez, where congress amended its findings. It is telling that congress did not do that here. Chief Justice Roberts Justice Barrett. Justice barrett good morning. I want to go back to Justice Gorsuchs questions about standing for the individual plaintiff. So, lets say that we agree with you that the mandate by making them feel compulsion to purchase insurance is causing them pocketbook injury. Why is that traceable to the defendant that the individuals have sued here . I can see that is caused by or traceable to the mandate itself, but how was it traceable to the irs or to hhs . Why is it there action that is their action that is actually inflicting injury . Mr. Hawkins Justice Barrett, we have sued five defendants including the United States and this court has applied a longstanding presumption that the federal government acts in good faith. And by suing the five defendants who we have sued here, i think that is the best way of ensuring that 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 but doesnt it really seem that congress is the one who injured the individual plaintiffs here . You cannot sue congress and state you put us under this usdate which has forced under this mandate and is harming us, right . Mr. Hawkins we have sued the United States. It is the United Statess law that the plaintiff have to require Health Insurance the United States thinks is good for them. Justice barrett let me switch gears a minute and 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. So, the house says the states would have to issue them regardless whether the mandate is intact in a statute or not, but the states point to the cost of producing these forms and mailing them out as part of what has created their pocketbook injury. Who is right . Mr. Hawkins so, they are correct that 6055 and 6056 are independently on the books. But if this court were to apply the longstanding presumption that the federal government will operate in good faith and respect this courts judgment, then 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 that that paperwork causes, including going through and saying who had what kind of coverage during which month. So, i think that is enough to satisfy traceability and regress ability as the fifth circuit correctly concluded. Justice barrett thank you, counsel. Chief Justice Roberts general hawkins, you can take a couple of minutes to wrap up. Mr. Hawkins thank you, mr. Chief justice. Just a couple of points. The Regulatory Burden imposed today by the irs forms is the most straightforward way to conclude that the states have suffered a pocketbook injury. And in any event, department of Congress Versus new york confirms that the states suffer another pocketbook injury as a predicable consequence of ordering people to sign up for insurance. Second, on severability, even if the court is disinclined to invalidate every provision of the aca, it should add a minimum agree with the Obama Administration that under the text of the law, the mandate is inseverability from the three legged stool. Third, on practical effects, we recognize the interests at stake in this regulatory regime. The District Court has stayed its final partial judgment. That stay could be extended for an appropriate time to allow the states and political branches of the federal government an opportunity to accommodate those reliance interests, as we saw this court do in cases Like Northern pipeline versus marathon oil. Chief Justice Roberts general . May it please the court. This court pushes the line between what Congress Actually does rather than it what it may have intended to do. When congress delineated the shared responsibility payment it left standing the finding that the mandate was essential to the operations of other parts of the act. Those choices have legal consequences. Whether or not the members of congress who voted for thit saw them. It is how this court should approach the aca here. I welcome the courts 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, and through that, try to strike down other parts of the law that do challenge him, or do injure him. I think that really expands standing dramatically. I mean, just in this act alone you are talking about almost 1000 pages and you are letting someone not injured by the provision that needs challenging to roam around to those 1000 pages and pick out whatever once he wants to attack. Mr. Wall i think the reason there is not a floodgates problem, a massive loophole in the reason we had not seen claims Like Alaska Airlines is because on its merits, it is just very rare that you are going to have the levels to overcome the presumption of inseverability. These claims go out and are dismissed, if they are ever brought at all. And the theory, and Justice Alito was pressing earlier, if you imagine a statute that had a clearly racial discriminatory provision and an expressed inseverability clause, the theory of the other side is that plaintiffs regulated by that statute could not challenge it. And that does not seem right of us. The plaintiffs here have an article three injury. They want certain kinds of insurance plans they cannot get the chief Justice Roberts it is a common feature of standing the result is people cannot challenge provisions. I mean, it is an important doctorate. It is the only reason we have the authority to interpret the constitution is because we have the responsibility of deciding actual cases. And that is what standing filters out. Mr. Wall i agree with all of that, mr. Chief justice. The plaintiffs here, paragraph 46 and in their declaration, pages 71 and 78, they say they are injured because they want plans they had before the aca and that they cannot attain now but for the acas insurance inform provisions. That is a straightforward article three injury. Chief Justice Roberts justice 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 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. Thats 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. Enforced against them. 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 doesnt have anything to do with standing. Its distinct from the standing injury. You move 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 presumption of severability. Provisions are severable. It doesnt 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 Generals Office read through the entire United States code, which must be quite a job, and discovered there is no prefatory language in the code. There is nothing in the code that says Something Like buy war bonds or plant a tree or Something Like clean your yard. Is that right . Mr. Wall there is plenty of precatory 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 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 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 read through the entire United States code and you discovered there is no precatory language in that code that uses the word that that uses the word shall. is that right . I remember when i use to work there. We passed lots of things Like National pork weekend all kinds of stuff. Lets 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 havent 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. 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. But that is in entreaty, or a supplication. Have you ever heard that . Mr. Wall when i tell my kids they shall do things, thats a command backed by a penalty. Justice breyer thats 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 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 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 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 read the finding. 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 dont want people to have to make this payment anymore if they dont 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 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 delayed 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 . 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 shared responsibility payment would be in 2019 and 2020 and 2021, but would phase back in as of 2022, would that be constitutional . Mr. Wall it would look more like a penalty. 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, would that be 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 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 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 dont 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 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 sidebyside. Chief Justice Roberts Justice Kagan. Justice kagan assume for the moment i dont 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 position on that. Justice kagan i know you havent, 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 respondents. I think it pays 22 of texass. It is reporting administrative 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 justice. A lot of legislation is in these 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. Isnt that something the United States should be very worried about . Isnt it something that cuts against all of our doctrine . 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 dont 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 dont think thats 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 severability. You dont 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 dont think it should hear it. If the theory of inseverability were weak, it is hard to overcome the presumption of severability. You dont see the plaintiff. The other problem 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, its 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 here. Mr. Wall we dont see the problem. It will be hard to make out an inseverability claim that will get you pass the motion is why we dont see people walking in an challenging single provisions of the on that omnibus act. It is rare to have an inseverability clause and have a factual finding that goes to that question that you ask when youre doing severability. No one has pointed to any other statutes. I understand the sort of reaction we dont see the sort of theory very often. I dont think that is a function of article three standing. The plaintiffs are injured. They want plans they cant get. Its 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. My understanding 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 strewn about the u. S. Code. Can you respond to that . 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 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 longstanding understanding of how congress works. Our respect for congresss legislative role in article one, 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. 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 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 . Im 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 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 its difficult to make shall do the work of should. That is more work than avoidance can do. That loop would be open to the court in every case like lopez and morrison. The court took those commands is what they were. People shall or shall not do something. Justice barrett lets assume i agree with you. Dont 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 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 dont think its fair to say the court shouldnt apply the act by its terms just because that would create a constitutional problem. Thats 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 lawabiding american to obtain Health Insurance unless they fall within one of three exemptions. The broad mandate, whatever its wisdom or practical import exceeds congresss enumerated powers and the courts should congress whatever ones view of the wisdom of the answer, the court should respect congresss 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 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. Thats a somewhat unusual statute but it aligns with this courts 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, 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 multihundred dollar tax consequence in the initial creation of health care markets. Congress zeroed out that tax long after the markets were created. Congress made 5000a unenforceable. The remaining provisions have been functioning perfectly well ever since. Finally, whatever your approach to separability, it is Common Ground that any the 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 lifesaving benefits and protections to hundreds of millions of americans. There is no doubt it has been controversial. In 2017, congress debated whether to keep it. Congress ultimately chose to preserve every provision while zeroing out the tax in 5000a. 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. Chief Justice Roberts the case is submitted. [gavel] that wraps up Todays Supreme Court case on health care law. After the oral argument, president elect biden spoke to reporters abouthe