Affiliation. We will unmute you in turn and i will introduce each questioner. We are going to do our best to give you send you a chat message saying your question will be able to be asked shortly. Id also like to remind everyone that this event is being recorded for future posting on the website and it will be live streamed on georgetown laws Facebook Page and cspan. Debby, can i say one thing, you dont have to tell us what your question is. Oh, yes, just your name and afi afillation so we can let you know who is speaking and that its time to speak. With that id like to turn things over to the director and folks, we may begin streaming and recording. Welcome everyone to our annual Supreme Court term preview. Im the director of the Supreme Court institute at georgetown law. Before we get started with todays scheduled program, i want to take the opportunity to acknowledge the passing of Justice Ginsburg. She was a trailblazing civil rights lawyer, a giant of a jurist and a larger than life human being, but i will remember most about her is her indomitable spirit. That and the devastating series of questions she hurled my way at oral an argument in the Lilly Ledbetter case, in the kindest way possible, of course. At this time i want to invite any Panel Members who wish to do so say anything theyd like about Justice Ginsburg, but first, let me introduce our panel. Don, paul clement from kirkland, and Ramon Martinez, paul smith from georgetown law, and Marty Lederman also from georgetown law. So anybody who wants to should be on video and take the floor. Anyone want to start . Don . Im still trying to get my head around the idea that Justice Ginsburg wont be on the bench any longer. I think for most of us, maybe all of us on this panel, who r have argued in front of the court, i dont know about you, paul, but shes been there for every argument weve made on the court and as you said in your introduction, even when you ultimately got her vote, she would always put you through your paces with that sort of insistence on exactness and insistence on getting things just right. And i think all of us, whatever we think one way or another about her understanding of the l law, have to admire so deeply her work on the court in these last few years, to have been able, given all that she dealt with physically, to be as active and vibrant member of the court up to her very last day is just aweinspiring thing. And to explain, i think, why she was such and achieved as much as she did, someone with that kind of fierce determination combined with the kind of intellect she had, really, i think we were all lucky to have been before the Supreme Court that included ruth bader ginsburg. Thank you, don. Paul clement . So, thanks, sir. And like everyone else, sort of still processing this. I would just echo a couple of your comments that both irv and don have already made and add one or two of my own. You know, i was in the courtroom with you, irv when you argued the Lilly Ledbetter case so i remember the questions well. You were too modest to mention you prevailed in the case and precipitated one of her most famous dissents from the bench that in turn prompted congressional action, which is all part of the remarkable leadership and that she provided the courts liberal wing. You know, especially in her last years on the court. And really, you know, had such a broad view of, you know, her role and her ability not just to sort of win cases in court for her side, but also to in a case like that, to prompt congressional reaction. You know, that was all a remarkable case. You know, to dons point about her dedication to her craft under, you know, difficult physical circumstances, i mean, i will, you know, it was a privilege to argue in front of her every time, she always, based on her arduous work habits put you to, not just through your paces, but made you a better lawyer, because if you didnt know the record backward and forwards, you knew she would. So, it definitely kept you working hard late in the night getting ready for arguments because she now you knew she was working late in the night getting ready to ask you questions, including potentially about things lurking deep in the record. But just to encapsulate that, the last time i argued in front of the court with her on it, she asked me her questions, literally from her hospital bed and in the Little Sisters case, which of course, was made possible by the telephonic format, but what an image that somebody was so dedicated to her craft and her role that she litter will i was asking questions from her hospital bed and difficult questions to answer, i should add, which is consistent with the way she always asked her questions at the bench, but then, let me just finish with the last piece, which is what has really struck me, especially in the last couple of days, reflecting on this, and reading all of the tributes to her and the like, is as long as she served on the court, i mean, decades of service on the federal bench if you include her time in the d. C. Circuit, she never lost sight of the fact that she was an advocate and she never lost the sort of advocate sympathy for what the advocate was going through and the challenges that the advocate faces and thats why, you know, irv mentions the Lilly Ledbetter case, you know, i certainly had a few of my own where she was definitely not with me and she was asking very hard questions, but she was asking them in a very, you know, firm, but polite manner. There wasnt an edge on the question. They were firm, but they werent so sharpedged that they left a scar. And i think all of that kind of goes back to the fact that she was an amazing advocate, she was an advocate who, you know, was not just skilled in the courtroom, but skilled with the broader strategy. If you go back and think of her cases in support of equality for women, i think about half of them that she argued her selves, involved males as the plaintiff, the litigant, all as part of her craft. You know, i just think its remarkable for somebody to serve as long as she did on the court behind the bench, but not lose her sympathy for those of us on the other side of the bench. Nicole. You know, i talked to a lot of people, reporters, et cetera, who asked questions like, what was it like arguing before Justice Ginsburg . You know for the most part as paul and don said, she played it straight. Her questions were straight forward, they werent slapted one way or another, she were clear. The thing i liked the most and maybe i was she always used our name. She said i have a question for you, and i thought, wow she knows my name. Now, i couldnt say that about the other justices necessarily. Sometimes i felt like when an assistant went up to argue, we were interchangeable cogs like Justice Ginsburg, wow, she knows who i am. She wrote the opinion in cases that argued and i felt it was a great honor, she thought our briefs were good, she wrote the opinion and that meant a lot to mement more fundamentally, just as i think back on it, i am in awe of how she was willing to proceed through difficult times, the Womens Movement and to bring incrementally bring cases to the Supreme Court at a time when people wanted to proceed faster and frustrating to see some of the first womens rights cases, the rights of men, certainly not what everybody else wanted to do, but i think there was wisdom in that. I think now, because the last few years, at least from my perspective havent been the greatest in the u. S. For women and what comes next and i think we have a lot to im grateful for that. Ramon. Thanks. And thank you to georgetown for having me and all of us here. You know, it was quite a shock when getting the news. Now, im someone who came of age and really started following the court and learning about the court in the 90s and the early 2000s and over the last few years weve lost three giants of that sort of era, with Justin Scalia and Justice Stevens and now Justice Ginsburg. Obviously, as an advocate and as a justice, her contributions from enormous across a lot of areas of law, most importantly, i think in the realm of equal protection cause and guaranteeing equality to women. As a law clerk, when i was at the court, the thing that impressed plea the most was watching her relationship with the clerks. She had an indomitable spirit and work ethic. She had these four 20something lawyers just scrambling, trying to keep up with her at all hours of the night as she was sending drafts around. She was going through Health Issues that year and also lost her husband that year and yet, despite everything that she was going through, she just remained a total professional, the perfect colleague and a person who just actively contributing and leading on the court through everything. And i think she was a real role model. I think the other thing ill comment on. I think that Justice Ginsburg in the las few years had taken on a broad cultural relevance that goes beyond the Supreme Court justice. I think in my own house when we got the news friday night. I have a daughter who has the book of course, rbg childrens book. And she took it, what she knew Justice Ginsburg as she said she took a hard path. I think what she learned everything about she learned about Justice Ginsburg and being a role model and a trail blazer, and shes gone and i think her legacy is more security and inspiration shell give to all of us, but especially maybe to young women like my fiveyearold daughter, i think, will live on. And so, you know, its a tough it is a very tough unexpected and, you know, very sad period because of that. Thank you. Paul smith. Thanks everybody for being here and great to be a part of this panel. I dont want to repeat everything everybody said, but i think its fair to say that her life will never come again and a person a leader of jurisprudence for womens rights, one of the justices of this modern time and then becoming, especially a cultural symbol for young women and basically for the whole country, thats a remarkable trifecta of things to accomplish in a life. And she did it remarkably. I have the same memories others have of being under the gun from Justice Ginsburg who was early on in her justice career, i was up there arguing a case in which we were somewhat sloppy about whether there really was Appellate Jurisdiction in the case. And one thing she cared most about was civil procedures, appellate procedures, and after 10 or 15 minutes of being scolded by her at the time a school teacher, i truly didnt know what i was doing, but then, you know, the contrast, she was occasionally quite helpful. I was versus texas i had been grilled by her friend Justice Scalia and she started interrupted, i just want to ask you a question, you do want us to overrule bower versus hardwick and right, and everybody sat back and i had five minutes whether the whole case should be everruled and changed the argument. And i always appreciated that she did that as well. Thank you, paul. Marty. Marty, youre muted. Thank you, and my fellow panelists, to be here among you. Unlike my fellow panelists, i never appeared before Justice Ginsburg. I knew her through her and her husband a member of our faculty. And appearing before the virtually the entire first year class and many more than that and at least an annual basis for a decade until this very year someone counted the number of times she appeared, about two dozen times in the last 20 years at georgetown with candor and discretion and inspiration for all of our students and it was just one of the highlights every year. She really cared about reaching young people and young lawyers. But i guess ill end by quoting something that i noticed friday evening or saturday. One of her first Supreme Court clerks david post uncovered this item. Im not sure where he got it, but he posted it and i think it i think it captures something that explains the woman and the jurist and the Public Servant she became. Its sort after disstilllation of everything that i think about when i think of Justice Ginsburg. And the remarkable thing about it is the date, its dated june 1st, 1946. The Young Ruth Bader was 13 years old in brooklyn, new york. The photograph of the death camps had recently been shared publicly for the first time. I believe it was either right before or after her mother had been diagnosed with cancer that would take her from ruth at a very young age after she had already lost a sister. And its an extraordinary little essay id like to read and i apologize in advance if i break a little bit. I tried this with my students yesterday unsuccessfully because i think of her when i read it and i think its an extraordinary document. For this was an essay posted on june 1st, 1946 in the bulletin of the east midwood jewish center, the place of the synagogue in her neighborhood in brooklyn. This is what the 13yearold ruth bader wrote. As a young girl who had grown up with some tragedy, but with the comforts and privileges of those of us here in the United States, those of our parents and grandparents here in the United States while their relatives and so many others were in a very civilized society, and nation, being slaughtered in such numbers in such hideous fashion, this is what she wrote. The wore has left bloody trail and many people have opinion been left with scars at that take a long time to wash away, and left in nazi concentration camps. Then, too, we have to understand for righteous people, good occupations nor fit companions as once said, a painful trouble, the trouble of thinking. In our beloved land families were not scattered. Communities were not erased, nor our nation destroyed by the ravages of the world war. Yet, dare we be at ease . Were part after world that unity is almost completely shattered. No one can feel free from danger and destruction until the many im sorry until the many torn threads of civilization are bound together again. We cannot feel safe until every nation and powers together in foot faith the people worthy of mutual association. There can be a happy world and there will be once again when men and women create a strong bond toward one another, a bond unbreakable by a steady prejudice or a passing circumstance, then and only then shall we have a world whose structure is the brotherhood and sisterhood of men and women. Thanks, marty. And thanks everyone. At this point lets begin our scheduled program. Last term was by far the most consequential in recent memory in terms of the sheer number ever blockbuster cases. It also had more cases with surprise endings than any term i can remember. At first glance, this terms seems like it will be a reversion to the mean, with far fewer blockbusters and far fewer unexpected results, but lurking in the background is the possibility that this could become the most tumultuous term since the Supreme Court decided bush v gore 20 years ago and who would determine who would be the president of the United States. To discuss these possibilities we will have an outstanding panel, of Supreme Court experts who youve already heard from. We will be discussing the Affordable Care act, religion and Sexual Orientation discrimination, aiding and abetting human rights violations, computer crime and election law cases affecting the president ial election. Our format is as follows. One of our panelists will present a case. After the presentation, others will be invited to offer their take of that case. And then we will take questions from the press on that case. We will proceed through each case in like fashion. As an advisory to the press, i want to alert you to the fact that we will not comment on the political issues of whether a new justice should be appointed and confirmed under this president or the next. Or whether the size of the court should be increased. We start now with Ramon Martinez in texas. Thanks, sir. So im just going to talk a little about california versus texas which, of course, the Affordable Care act case or the obamacare case, depending how you want to characterize it. This is sort of round three in the series of major constitutional and statutory challenges to the act that the court has dealt with, since it was enacted. Of course, you have nfib versus sebelius. And i hesitate to talk about that case with don and paul here who argued the case and nfib, the court upheld the constitutionality of the mandate to purchase insurance as an exercise of congresss tax power, but rejected the idea that it was a valid exercise of the commerce power and later, king versus berwell, examined a tricky and important statutory question and weve sort of come full circle in california versus texas the court is once again dealing with the question of the mandate except its in a slightly different statutory context. And so, what basically happened was a few years ago in 2017, congress amended the Affordable Care act so essentially eliminate the tax component and ive got to be careful what word im going to try to describe this neutrally and words matter here. Zeroed out the tax component of 5000a of the law, mandate provision. Left Everything Else intact and said if a perp does not Purchase Health insurance theyll have to pay a tax, but when it sort of explained what the tax was, the law now says that the tax is zero. Congress did this essentially to provide citizens relief from the mandate as a practical matter because with the tax at zero, it essentially gives citizens the option, or the option not to comply with the mandate, which remains on the books, but theres very little consequence for noncompliance because you dont have to pay a penalty, you dont have to pay a tax. Texas, 17 states and a couple of individuals sued and they said that by eliminating the tax in 2017, congress had essentially transformed the mandate provision back into a pure mandate. They could not be justified under the congresss taxing power because again, the tax had been reduced to zero which meant if the mandate was valid, it had to be valid under the commerce power, but we know from what the court said in nfib versus sebelius, the commerce power doesnt cover this, therefore, the mandate such as it remains in the statute, is unconstitutional, the challenger said. Here the crux of the case, it said because the mandate provision is so integral to the entire statute, including the guaranteed issue and Community Rating provisions, essentially the provisions that require coverage of preexisting conditions, and that it affects the prices that can be charged to people who want insurance, but also, the connection between the mandate and all other provisions of the act, the challenger said the entire statute had default. California and the house of representatives are in the case, intervened in the case to defend the mandate or sorry, to defend the law as a whole and to say that the mandate as it currently exists or the mandate tax is zero as it currently exists are perfectly constitutional. The District Court agreed with the challenger to the statute and essentially said that the law as it currently stands is unconstitutional and that it cant be the mandate cant be severed from the rest of the statute so the whole thing has to go down and the fifth circuit agreed on the question of whether the mandate as it currently stands is constitutional and said that it was not. But it remanded to the District Court to do a more finegrained analysis on severability. The Supreme Court granted that and the Supreme Court will address three major issues, one is whether the challenger should have standing, the second is the constitutionality of the mandate, and then the final one is the severability question. I wont say a lot about the standing issue. Now, although, you know, it is an interesting and important issue, it does seem to me that if the court on the spirits thinks there is a mandate here thats significant, that will probably lead us to think that challengers do have standing to challenge the law. But just jumping to the constitutionality of the mandate which is the first merits question, the argument is to how to construe the statute as it stands. One interpretation which the challenger put forth is that you have a mandate now, its not a tax anymore because the tax has been zeroed out. And standing between Justice Roberts and nfib put on the staut statute essential i that it was a tax and the feature of analysis that the mandate provision taken as a whole raised revenue from it cant raise revenue if the tax is zero and no longer a valid its a still a tax or i think as they say a suspended tax, which is an interesting formulation which i hadnt really heard of before exercise of tax power. And they say as a practical matter theres not really a mandate theres no tax or coercive attached to the mandate. And therefore, its not unconstitutional and therefore, there is a he know constitutional problem here. If the court agrees with the challengers that there is a mandate and that its not justified as a tax anymore, then the court gets to the severability issue. And the challengers to the law say that the entire statute has to fall and they rely heavily on factual findings that congress made in the original Affordable Care act statute that linked the mandate to certain other provisions, including most directly to the guaranteed issue and Community Rating provision and they point to the fact that when the Obama Administration defended the mandate the first time around nfib, it acknowledged that the mandate was linked to at least those provisions and the dissenters in the nfib case said it should fall if it was unconstitutional and challengers revisit those arguments. The defenders on the other hand say that this is crazy, its severability that turns on congressional intent that it would be an absurd outcome to essentially strike down the entire Affordable Care act statute which is 2000 pages long simply because congress in 2017 decided to essentially just eliminate the tax component of the mandate. Its obvious that when congress has been debating the Affordable Care act in 2017, it considered whether to repeal the who he will whole thing and decided know the to and essentially would make the mandate a toothless mandate, even if its still a mandate, it does not have coercive affect and didnt change everything in the statute and severability turning on issues of congressional intent the defenders of the law say then that intent is clear that congress wanted to have a toothless mandate and did not want the rest of the statute to fall. Those are basically the legal arguments. Ill just offer a couple of quick sort of observations on the case. It strikes me that this, the case, it feels sort of artificial, frankly, on the constitutional issue. Theres some great lawyering on both sides and very clever arguments, but at the end of the day, i found the lawyering, although very good, theyre sort of argument about this somewhat fake question. You have a situation in which the chief justices construction of the statute in nfib was barely plausible as his opinion his own opinion seems to concede. If you read the text of the statute it reads like a mandate, it doesnt really read as a tax. The chief just barely got around to endorsing the tax interpretation of the statute to save its constitutionality, and i think now the defenders of the statute are asking the chief essentially to go a step further and say, okay, well you saved it as a tax, now weve zeroed out the tax consequenc consequences, but you should apply the same logic and essentially say its still a tax or its not really a mandate. Even under the new statute. You know, i can its a longshot for getting justices alito and Justice Thomas who didnt like that argument the first time around, it seems a stretch to get justice can hakavanaugh and gor on that theory the chief has to make a decision whether he wants to dig deeper into the statutory construction he agreed with the first time, but, even the interesting thing is about the case is that the ultimate question whether the mandate is constitutional or not doesnt really have a lot of practical significance in and of itself. What matters is the severability question because that is what is really going to have an impact on people if the entire obamacare Affordable Care act statute is struck down and on that side of the house, it seems like the challengers to the statute have a very uphill battle here. As the defenders of the statute say, it seems fairly clear from the history at least, that congress wanted to have a world in which there was a toothless mandate, coupled with the remaining provisions of the Affordable Care act remaining in place and traditionally severability has turned on indications of congressional intent. You also have a situation in which both the chief justice and Justice Cavanaugh have often and recently left just last term endorsed the severability doctrine and a strong presumption of severability. We can talk about details of that, but i think the line that jumped out to me is from a decision that Justice Kavanaugh wrote, unfortunately, ruined the wrong way against my client in the last term and involved severabili severability, but he said that constitutionality is not a game of gotcha, where litigants can ride a constitutional flaw to otherwise take down the whole constitutional statute. I think for the defenders. Affordable care act squarely describes the litigation going on here and that really, the challenge to the mandate, which doesnt really mean much is just being used as an excuse to take down the rest of the statute. It seems to me that the challenger may have an uphill argument on that point. I guess the final thing ill say before opening it up to broader discussion, this obviously provoked a lot much political commentary over the last few years and played a prominent role in Justice Kavanaughs hearing and playing prominent role in the election and i think in the popular discussion of the case, or understanding of the case, it seems very politically charged and contentious and that understandable because of the fact that it does implicate the fundamental legislation thats been controversial for since it was enacted. That said, this strikes me as the kind of case where its possible that people will ultimately be surprised a little bit by the way its resolved. I think this is a case that is a candidate for resolution on the severability grounds and not going to turn on the standard partisan alignment and partly for that reason, i think its a case even if the court remains at eight justices and we dont know exactly how thats going to play out its the case that might be able to get decided anyway. And so this might be a case that might surprise people who might think it will attract the normal political alignment, but of course well have to see. Ill leave it at that. Thanks so much. Ramon. Anybody else who wants to comment, just grab the floor. Im not going to call on you. So i agree severability issue ought not to be difficult, but it may well be with the court to agree arn that and makes this an easy case. On the other hand if you try to identify the case that might turn on the addition of a new justice, this may very well be that case. Its imaginable that the chief justice would not have taken this town and now that hes no longer the fifth vote, and irv, this is the other paul. I would just say that, you know, i do think that on the merits the addition of a new justice could make a difference potentially, but i think im probably in agreement with ramon that on the severability issue, im not sure that the addition of a justice will make a difference. The only other thing i wanted to say, maybe two very quick closely related things, i do think its worth underscoring how different the severability question is this time around from back in the day in nfib. Because you know, its one thing to make the severability argument in the context of the statute, the first time its passed and there havent been subsequent efforts to reveal it that have failed and its different to make the argument in the context that we now have, especially given that the mandate has been amended to have zero teeth or zero revenue raising effect. Its hard for me to say even though i said it to the court back in the day, that the mandate was central and i think thats a pretty good argument back in the day. Its a little harder to say that the mandate is central when it doesnt have any teeth and so, i think its a very different argument this time around. The second thing ill say is, there is a little air of surrealalty around the severability issue and there are a lot of different ways to could many at this, and even though theyre argument in favor of taking the whole statute out that theyre really acting consistent with that view and like one way to sort of encapsulate this, obviously for me, i argued the case last year about the risk corridor payments under the Affordable Care act and that was a case where, now, my clients prevailed. The federal government lost. The federal government, you know, has since then, in the month since that decision written very large checks to Health Insurancers. Under the statute, it just seems like, if the whole statute is actually void and you know, collapses, you think that might have come up in the context of this case, i mean, im not you could quibble about whether because these obligations were incurred back in the day, you know, the nonseverability of the statute is dispositive, but it sure seems like it would be relevant. The fact that it would get through the Main Community health case and you know, the federal government never stood up and said, oh, by the way, the whole statutes unconstitutional and must fall. You know, and you know, there are federal agencies right now, that are exercising authority under previsions of the Affordable Care act that are unrelated to the mandate. It just all seems a little surreal and you know, maybe its just another way of saying that i think the challengers have a very uphill battle when it comes to making the severability argument. So if i might jump in. I agree wi ramon paul and paul,i dont know paul the former and latter. But theres an air of what paul called, an air of surrealist about the severability argument. It seems preposterous, not what the congress intended, they intended the opposite. There are somewhere between three and four dozen amicus briefs arguing that it is severable or what the catastrophic outcomes would be. I filed i think the only amicus brief arguing whether the 2017 Congress Actually enacted in mandate a requirement for people to purchase aca insurance requirements. That seemed more ser real than the severability argument. I think the notion that the 2017 Congress Donald trump impose add mandate to purchase insurance is contrary to the plain text of what they did in light of the chief justices construction of the statute to give a choice between a and b and they didnt amend a or b. You can maintain Health Insurance or pay the personal responsibility payment, which is now zero. They didnt amend that. They knew that was the construction of the statute. The president of the United States last week in his down hall with George Stephanopoulos said for the four thousandth time, i got rid of the mandate. He didnt just say it then, he said it when it was introduced. He crowed about it in the state of the union address. And said now were overurning it the mandate and every one of the members of the republican majorities in the houses agreed and described it that way. Majority lead are mcconnell, something remarkable, we respieled the individual mandate tax so low and middle income families are not forced to purchase something they dont want or cant afford. And their intent reflected in the statements golf verps, its that that intent in those statements reflect the only reasonable reading what the 2017 congress did, it turned the reality on its head to suggest what they did was create a mandate to purchase insurance particularly the Supreme Court had just decided that congress doesnt have the constitutional power to do that, a view that 43 members of the republican majority in the senate, including the majority leader agreed with in a brief to the Supreme Court. The idea that this congress, you know, brazenly enacted a law knowing that the Supreme Court had just called it unconstitutional, kind of like the 1862 Congress Passing a law to prohibit territory slavery in the territories in order to rebuke the scott position, surreal doesnt begin to describe it. But i agree with my fellow panelists, this should be a twoparagraph opinion unanimous, virtually the easiest statutory question the Supreme Court ever constructed. I agree with my panelists if the views of the Supreme Court are any indication and what ive seen from other comment taters, theres a chance some justices, perhaps a majority will hold the 2017 Congress Imposed a mandate despite the fact they were trying to do exactly the opposite and thats how evan ooh understood it. If thats what happens, i have to say i dont know whether to be, it will be the most cynical thing the Supreme Court has said in many a decade, but it will be the most incomprehensible and i think it will make a mockery of what we try to teach our students about the law. Right and i say that, by the way, someone who thought sebelius would be a 54 Court Decision and that the Supreme Court might rule the other way in king, and this should not be on both questions the first and the second, but on the first im afraid that im not sure that that is the view of all of the justices on the court. I hope the pauls and ramon are right about it, at least the severability part of it. I want to hear what don has to say, since hes arguing. Im just taking notes. [laughter] i dont know, and maybe ill you can talk about what what he ever you want. On my mind, how much the circumstances come in play. Were in the middle of a pandemic, and a president who says he wants people to have health care and flipflopping, and i want to hear from don. Im mainly taking notes here. You know, paul smith made the point that the Justice Ginsburgs passing and perhaps filling of the seat might have an effect and who knows . Maybe thats true. Nothings ever been easy about the Affordable Care act in my experience at least, why should there one be easy. On the other hand our case is just as strong today as it was a week ago. So, im hopeful at the end of the day that the arguments that were putting forward will be as persuasive as ramon and predicting it will. Okay. So, i think its time for questions from the press. We dont have any questions at this time. Okay. So because this is such an inconsequen inconsequenceal case. I stand corrected. [laughter] i stand just when i i stand corrected. You provoked them. I did. We have a question from mark sherman from ap. Can you hear me . We can. Okay. Hi, thanks for doing this session as always. I just want to ask a quick question whether if a Biden Administration and a Democratic Congress took office and were to set the penalty at 1, does the case go away . Thats a great question. I dont know, you know, i dont know how quickly they could act although presumably they could act quickly. It does seem that, you know, it would just make this surreal case even more surreal that thats the next step in the saga. If does seem under the if they did that, youd be sort of a lot closer to the world in which the chief confronted the, you know, how to characterize the mandate provision the first time around. And so, it would arguably still be a tax, although at that point maybe say hey, this is do ridiculous to maintain the solution here is right and the total pretext, but certainly would make the case harder, i dont know if others i think, marty, your well done amicus brief has the one cent tax. Yes, if they set the tax at one cent, there would be no case, mark, youre right. Thats a good question. Everyone would agree and for at that penny, the entire Affordable Care act comes down. Its an absurd idea. And its not because what ones left with is an exercise of the taxing power necessarily. Parties down that it can be under the sustained taxing power. You dont need that. Congress, perfectly constitutional for people to give a choice of two things if they could require one of them and here are the choices, maintain Health Insurance or write a check for zero and do nothing, and those are Things Congress can do outside the taxing power. Congress can obviously repeal a tax, has the power to do that. Thats effectively done here, at least temporarily. I think your question let me jump in on it, your framing is clever, youre talking whether they impose add mandate in 2017. Thats not really the question. The question is the statute as it stands and the statute as it stands was unacted in 2010 and its got clear language ago naturally read even the chief justice said to create a mab mandate. And the only way he read it the other way as a tax, because it raised revenue. Once you get rid of the revenue raising collapse, its a mandate read on the page. If the current version of the statute had been the one on the books in 2010, i think that don and the Obama Administration would have had a much harder time prevailing. Thats true, but the 2017 congress acted against the backdrop of the construction the court had given it and took that as a given. Thats what they worked against. The only reason they didnt relegal it outright was an internal rule. The bird rule that allowed them reconciliation, so were not wiping the slate clean. This court had construed these words as providing a choice to individuals and congress did not amend those words. So its still a choice. No, but it interpreted them that way in part because they had a revenue raising aspect to them that made it actually look like a real tax. Now its not a real tax anymore, its a fake tax or we can disagree on the it speaks for itself. But its not easy. Anyway, but i enjoyed your brief, marty, well done. Thank you, roman. It is meant to be enjoyed. Anybody else on just the question that mark had . Then do we have any other questions . Mark sherman, ap. I thought we just had mark that mark. Oh that, was just, we just did. Oh, im sorry, for give me, suzanna lucie, politico, apologies. Thank you. Can you hear me . Yeah. So i was rereading the chief justices past decision and i believe it was sebelius decision, he basically says the mandate, the coverage guarantees, and the subsidies are tied together. Do you see a specific threat to title one, including, ive heard speculation that coverage protections might be the most at risk in this case, but what about due to the subsidies and all of basically the exchanges kind of imploding as a potential outcome . Ill leave it to others who know more about the intracacies, but i think the baseline answer, thats kind of a severability question, which is whether we have been talking about essentially, you know, if the challengers win on their severability argument, that would mean that Everything Else goes down and its involume dated. And so, i think invalidat invalidated. So i think that would apply to the entire 2000 page law and it feels like a bit of an uphill argument. Yeah, if i can just followup on that. I think this is a good way to illustrate the difference between the severability arguments this time around and last time around. Because you know, last time around when you were looking at this organic statute that fit together and passed at the same time and had a mandate that was a real mandate enforced by penalties and you had a whole bunch of people saying you really need a mandate and a real mandate enforced by penalties because weve seen in other states like massachusetts or whichever it was, i may have forgotten the state, but weve seen states that passed guaranteed issue and the like without a mandate and it hasnt worked. There was premium spiral or whatever it was. Thats a pretty good argument. You know, got four justices vote back in the day. Its just a very different argument and now, say, when the Supreme Court has just reinforced that severability analysis is all about congressional intent, its a very different argument to say that congress would never want features without an individual mandate when congress itself has turned the individual mandate into kind of a nonmandate by attaching a zero tax, so, youre right in the sense that like the severability argument sort of, you know, when i was making this argument back in the day in sebelius, it remaineded me the hand bone is connect today the wrist bone connected to the arm bone. You have this whole process where the statute is kind of, you know, the way you make the argument is to say, look, guaranteed issue doesnt work without the individual mandate and then another feature of the statute doesnt work without guaranteed issue and pretty much, if they couldnt have those core features of the statute, Congress Really wouldnt have wanted the whole thing. Like i said, i think that was a pretty good argument back in the day, but to make that argument in the context where congress after it was done with the 2017 work left the whole statute in place with a zero tax mandate. Thats just a very different argument and it seems like a tougher argument and it seems like a tougher argument even as to the first step in the chain of guaranteed issue and the rest of the stuff in that tit title. Anyone else want to comment on this question about, i think, its whether the subsidies are at risk. Okay. Next question. No pending questions. Okay. So we then move next up is paul clement and he has fulton versus city of philadelphia. Paul. Thank you, irv. Im going to talk about this case. I think its a potentially important case but i think i can cover it relatively quickly. He so, this is a case with two potentially really important issues in the religious liberties area, but i also think a lot of potential for the courts to decide the case without really definitively deciding either of those big ticket issues. So, the facts of this case that i think are relevant is that the city of philadelphia has long had a foster care placement system where they partner with organizations that some of which are religious, some of i with are nonreligious, but the way the Program Works in essence, at least as i understand it, is that the the organizations essentially are responsible for finding the foster families that can provide a foster home for the children who are in need of foster care, so, the city has this, you know, city of philadelphia faces a lot of challenges and so there are a number of children in the city that are in need of foster care placement. And so, what these organizations do is, they provide a, you know, they go through whatever screening, they go through and do home visits and they come up with essentially, you know, lists of availability foster care families. And there are dozens of groups that participate in this and you know, some of them are religious, some are nonreligious. One of the religious groups that has participated ments were going to have to live this live Supreme Court forum here. You can continue watching this on our website cspan. Org. The u. S. Senate is about to
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