Transcripts For CSPAN3 Texas V. United States Health Care Law Oral Argument 20240713

Thank you, your, honor ill be sharing my time with mr. Whatever the house of representatives, except that mr. Letter will be going first. Start with the issues raised in the Court Supplemental briefing order, we think that the state defendants were clearly injured by the judgment below and therefore have a standing to appeal it. You might want to move the microphone so youre not. , this is better, your honor . Speak louder. Thank you. But after the supplemental briefing, it is also now clear that all parties agreed this court has appellate jurors diction under bens are. That is because the federal government is now committed to continue to enforcing the informal care act until the court enforcing the Affordable Care act until the court orders are not to do so. The first legal arm. The participation of the states and house of representatives ensures that there will be an adversarial presentation of the issues in this case. Turning to the other issues in this case, the central feature of this appeal is that when congress. Your standing, the interveners states, being her states intervenor states, are you necessarily regarding the plaintiff states. Nope. So your hair telling us that the state of texas does not have standing to litigate here. Explain that what is the distinct and that licenses you with standing here, but not the plaintiff states . The judgment below if it were to take effect would cost the states hundreds of billions of dollars in federal funds. The state plaintiffs rely on a theory of standing that they have not proved up. They argued that the individual mandate, even though it has been stripped of its alternative tax penalty, is going to cause people to enroll in their medicaid programs. But they have not produced any evidence to support that suggestion. That makes this case similar to this courts decision in crain v johnson. Where it held that mississippi did not have standing to challenge the docket directly. In that had not shown that there were daca recipients. Dont they also cite the cbo report that talks about the expenditures they can reasonably expect to incur . That report concludes only that there are some small number of people, who even once the alternative tax has been zeroed out, will maintain Health Care Coverage. So they only have a little standing . They have not proved the final link in the causal chain. To show that there are individuals like that in their states who are enrolling in their medicaid and schip programs. It is that link that they have not proved up. To go back to the courts decision in crain, the record here similar that ms. Help that that the court held that mississippi did not have standing. That came to this court on a motion to dismiss. We are here on a Summary Judgment. The state plaintiffs burden was hired here. I think the records are similar. Actually, in that case, didnt judge owen write, in her concurrence, that mississippi had not even earned its proper standing . And that it would be a different case, it might be more similar to one of the u. S. Supreme court cases, if this is if he had urged its standing. Sometimes things that have not yet occurred can still give rise to standing. That may be the case, but they have the burden of coming forward and showing that there is evidence that we can believe people, because of a penalty last mandate are going to a mandate without penalties, are going to enroll. We can get back to your clients standing, before we do, can i ask about the record . You said the record was similar in that case. I want to make sure the crain case to this case. I want to make sure what youre all calling those Summary Judgment record is. I have this exhibit a, which are all the declarations from all the states as well as the individuals and then various people who work at the states making certain declarations. This is in the evidentiary record for Summary Judgment, correct . Yes your honor. Was there ever any motion to strike, or to say that some of these are conclusory, or anything of the sort that would have evidentiary quibbled with exhibit a. Not that im aware. Infects your client did not argue that there was a lack of standing. In passing and oral argument, it was never pleaded . In our response for Summary Judgment, we did not raise the standing issue. We also did did not ask the courts to allow us to argue it further. We argued if in fact, as you argue the record were insufficient to support such standing, that would be because this, alone, is not enough, or because there is some contrary Summary Judgment evidence. But there is no contrary Summary Judgment evidence, is there . To be clear, our position is that it is not enough. So you are not saying there is a fact issue on the question. That is correct. So we do not need to remand for a fact for a determined trial on the standing issue. In our view the correct. In our view, theres not enough evidence to demonstrate their enough people enrolling in the Medicare Program or to program because of the zeroed mandate tax. Can we talk about your clients standing more . You believe you have standing because of the judgment that might take a fact, but if a declaratory judgment that we are here on would take effect, how would that impact your client . That is not an injunction, it is just a declaratory judgment, visavis these parties, a partial Summary Judgment. Judge oconnors understanding was that it did have an injunction effect. He said that it was not an injunction several time. Thats why he issued a save appeal, and as part of his determination is judgment concluded that his determination or judgment would harm us. We have under stood as judgment is binding the United States with respect to our states. If it was not binding with respect your state area do you agree that you would like standing in this appeal . No for two reasons first i would want to know the scope of,. There is no remedy. It is just a declaration. Standing was just a declaration, how do you have standing . And if the federal government is not going to structure its Affairs According to that declared tory judgment, and is not going to start cutting off our medicaid funds or making other changes, then we might not have standing, just based on the practical harm. Do think we would suffer legal harm in the forms of collateral consequent is. But this court does not need to answer those questions because all parties agree that it has jurisdiction under windsor. If i might, turn to the merits. The central feature of this appeal is that when congress adopted the tax cuts, it made the individual mandates unenforceable. That means that the individual mandate no longer requires anyone to do anything. That it can be upheld as either a preparatory provision, similar to those that congress adopts that no one things causes a constitutional problem. What other statutes are there out there that use mandatory language like the one here, that are now suggestance for Better Living or Something Like that, that use the word, precatory[ . ] that the citizenry should know that they do not need to really follow. Just go forth and do good. That this statute should just be ignored if you so choose there are other provisions in the u. S. Code that are not binding or not operative. Severability clauses include the word shall, but courts do not treat them as binding theyre also in operative positions provisions like section 5008, subsection c, two, b, xi, which defined the amount of the alternative tax for this when he 14 taxable year. That uses the word shall and has no effect we find ourselves in an unusual situation. The virtue of our position of understanding this is either a precatory clause or as a suspended exercise part of a tax clause, is that it would allow this court to uphold the individual mandate when it will save it from the unconstitutionality, courts have a duty to adopt that construction. But youll agree that congress could have included a severability clause such as what you mentioned a few minutes ago, when it adopted the aca in 2010, couldnt it have done so . It seemed they did the opposite, saying it is a comprehensive overhaul. Could congress have said, by the way, we think these provisions are such excellent ideas and helpful to the public, that if any of them go by the wayside, we want all of these, the remainder to continue to apply. What the Supreme Court has said, that where congress is silent on that point it is silent. It does not create a presumption for or against severability. It does bring the severability question here. Judge elrod can we talk more about the merits . Why is a command not a command, if the cbo says it is for some people. Indeed, blackstone himself, says that people follow the law just to follow the law, because they want to be good citizens. So without regard to whether there is a penalty, why is in a command a command . The court said that this provision, even though it includes the word shall, does not have to be read as a command. Because it was in conjunction with the tax. The chief justice also said that the most natural reading of the provision was as a command. So if you no longer have the tax, why isnt it unconstitutional . Because it is possible to still understand this as a precatory provision that does not create rights or obligations. Judge elrod how can it be precatory if the most natural reading of it is a command that does require action by the federal government, telling someone to buy insurance . Because your honor, this is an alternative reading available to the court. It is in a usual reading. We think that better course for this court to chart is the one laid out by nfid, to adopt this understanding of an individual mandatory as either precatory or judge elrod it does not apply. This is no longer a tax. Then what happens . Then there are no legal consequences for going without Health Care Coverage. Judge elrod youre violating the law. And thats what nfid makes clear. You are not violating the law if you do not buy Health Insurance. Visuals who do not buy Health Insurance, nothing bad will happen to them. There are no negative legal consequences. Judge elrod are you saying we are not able at liberty to uphold this based on the Commerce Clause or the necessary and proper because, given that there have been five votes in the courts against those propositions . We think the best way to understand this is as a precatory provision. Judge elrod but do you agree . Judge engelhardt i asked if you agree with that proposition. It can be upheld as a taxing power or as necessary improper using the necessary constructs that nfid did. The power to keep this kind of provision on the books, it can look to the taxing power. Section 5008 still contains references to the number of dependents. It still has subsection g, which says the irs cannot bring criminal prosecutions. Of course, it is not generating revenue anymore. But this court rejected the argument that a law must generate revenue at all times to be held as a taxing power. Judge engelhardt does the 2017 tax cut 20 change to zero in the 5000 b, is that permanent, absent further action from congress, or doesnt have an expiration . Judge engelhardt it seems like a yes or no judge elrod and make sure you have time to talk about severability. We want to talk about that too. Thank you your honor. No. Without further action from congress, that amount will be set at zero. So on the severability question, the Supreme Court has instructed, that the severability inquiry is one of congressional intent. Here, we think the answer is straightforward. In this case, we know what congress would have done by examining what it did in the text of the tcja. It rendered the mandates unenforceable by zeroing out the only legal consequence for going without Health Care Coverage, and at the same time chose not to repeal the preexisting protections or other reforms made by the formal care act. And with that action, your honors, converse expressed its views that the individual market, and indeed the entire of oral care act, cant operate without an enforceable individual mandate. We think that that is all this court needs to know to resolve the severability question. Judge engelhardt king versus burwell opinion seems to be very specific in its language, particularly with regard to the guaranteed issue, the Community Rating provision, the individual mandate, and i know you have read that, as have most people involved. But it seems like the language used is pretty heavy when it comes to those provisions being interlocking or intertwining. How do we unravel that in light of the king versus burwell language . And that reflected the view of i think the 2010 congress. The question here is not about what Congress Wanted in 2010, but what the Supreme Court said in 2015. It is instead what congress did in 2017. With its actions in the text of the tcja, congress made the initial mandate unenforceable, and chose to leave the rest of the aca provisions. Judge engelhardt werent they in a reconciliation process at that point . Were they limited to what they could do written regard to the tax bill in 2017 . They were, your honor, but that does not change the analysis here. The relevant thing is that congress made that in visual mandate unenforceable. Judge elrod the act the tax unenforceable, not the mandate itself. Judge engelhardt surely word had reached congress from the Supreme Court building that the nfib opinion had been rendered. Surely congress knew that the linchpin that Justice Roberts described had been adjusted. Is that not correct . And Congress Drew a different determination in 2017. Judge elrod how do we know that . How do we know some members of congress did not say aha, this is the Silver Bullet that is going to undo the aca, or obamacare, if you prefer, the aca. So we are going to vote for this, just because we know it is going to bring it to a halt. Because we understand the tax issue, and it is no longer a tax. Your honor, that would be imputing to congress and intent to create an unconstitutional law. And also, there were several members who voted for the tax cuts and jobs act and said we are not repealing the preexisting protection conditions, were not repealing the subsidies. That would mean they were misleading the American Public and their constituents when they said those things. Judge elrod the only way to know what congress intended is what they say through their legislation. And they left, in place, the mandatory nature of the mandate. Can you help me with that, please . They made the mandate unenforceable getting rid of the tax. And it is clear that congress intended for the two things to be one and the same. The house of representatives reply brief at page five, several statements from emerson congress including speaker ryan, he said with this tax bill, we are quote, repealing in visual mandate. Judge elrod those faces in the crowd, whether they are friendly are not, can you tell. Yes your honor, you can. The Supreme Court in resolving severability questions has looked to things like statements from congress that there was no practical difference between zeroing out that tax and repealing the in visual mandate. Judge engelhardt where are the statements from those who voted in 2010, saying that, no worries, the individual mandate is not really a mandate. Even though it says shall, were voting on this today, and citizens, you still this is an option that you can pay the tax or buy the insurance. Since you are using quotes, and i have to tell you i am not a fan of using quotes from elected officials who say a lot of reasons, to support. Im not a fan of using that to support an opinion in court. Because, as judge elrod said, we depend on the law expressing the will of the legislature, of the congress, at this point, but where are the statements, since youre bringing up all they statements, where the statements from 2010, saying do not worry about the individual mandate, it is actually not something that requires you to buy insurance . I dont know where the stations might be. But our point here does not rely on statements of members of congress. All you have to do is look at the text of the tcja, see that congress zeroed out the only thing that made the individual mandate enforceable, and that is the beginning and end of the severability analysis. These other thing weve pointed to, the from members of congress, the 2017 and cbo report, the appeal, are supporting pieces for us. This courts analysis can begin and end with the tc ja. Maybe over my time, but if i might. Judge elrod you may, but i asked him questions. What it would you three more minutes, and give the other side three more minutes. Thank you your honor. Judge elrod you may be heard. And then i will ask a question. There is just one more point i wanna make here. In other frame the Supreme Court has used to discernment determine severability questions is one of functional similarity. And here the individual mandate but leave the rest of the Affordable Care act in place, it would be creating a statute that is not just consistent with congresss designed, but one that would operate in a manner that is exactly the way congress designed things in 2017. The other contextual factors of imprinting printed to here, including, importantly, the failed efforts at factors we have pointed to hear, including failed efforts at repeal. Those are powerful indications that if the remedy is needed here, the one most consistent with congresss intent is to render the individual mandates and declared unenforceable. Judge elrod counsel, can we turn back to the standing of the plaintiffs, please, for moment . If in this declaration, one of the states, i think its missouri, says that it has to pay 50,000 to send out this for the year 2021 to send out this form, 1095b to everyone, why isnt that a tangible cost that would render standing for the state of missouri . Because that cost is imposed not by section 5000a, but by by other provisions of the aca. Judge elrod they say they have to do it because of this. There is nothing from the record that says from an irs official or an expert you have hired, that says its really because of some other reason. So why wouldnt the Summary Judgment record control on that point . Respectfully, your honor 26 usc 6055 and 6056 as the reason they have to issue these forms, not section 5000a. The National Federation of the blind and haas, in order to bring a constitutional challenge to a provision, the plaintiffs first have to show that they were injured by that provision and then show that that the provision is unlawful or unconstitutional and only then do you get the severability analysis. Judge elrod is there a symmetry in our standing analysis for plaintiffs and interveners, legally . I dont think so your honor. It is clear to us at least that the judgment below it cost us hundreds of billions of dollars in federal funds. Our position here is that the state plaintiffs have not made out their evidentiary burden to show that section 5000a is harming them. Judge elrod if we were in the d. C. Circuit or the 10th circuit, would your answer be the same . Because they do not have that case. A different standing analysis. Yes, your honor, i think the requirements of article three, and what a party has to share the Summary Judgments stage are the same judge engelhardt who would have standing . No one would have standing. Judge engelhardt no one would have standing to contest a mandatory enactment of congress to say a citizen shall do something. No one . It seems we fought a war over that 200 years ago and the king would say you have to do that. The important distinction here is that it is not backed up with any negative legal consequences. If i dont buy Health Care Coverage next year, nothing bad is going to me. Judge elrod that is your answer for the individuals. Because we have not talked about the individual. That is my answer for the the individual plaintiffs that can satisfy the legal obligations by doing nothing. I see im over my time but i be happy to answer other questions. Judge elrod i think we will catch you next round. Thank you very much, your honors, i appreciate it. May it please the court, im the general counsel the house of representatives. Judge engelhardts questions go to right the heart of this case. I would like to address them first. Judge englehardt you are saying that we have this mandatory language and therefore the people of the United States would know that theres a mandate. That is not correct. Remember, the Supreme Court said, unequivocally, in an f. I. B. , that there is a choice, it is not a mandate. You can either you shall maintain Health Insurance or you pay this tax, so that is the definitive interpretation of what the Affordable Care act means. The Supreme Court said that, and yes, congress was well of aware of that. And this court, obviously is bound by that. Everybody in this courtroom and the congress. We are all bound by what the Supreme Court majority held in the Affordable Care act case. We know that congress has the authority to take attacks of a certain amount and make it zero. Theres no doubt about that. Nobody can contest that. Congress did that. That means the choice is still there. The choice that the Supreme Court said was in the statute. At that time, the choice was, maintain Health Insurance, or pay a significant tax. The choice now is, maintain Health Insurance, or pay or there is no tax. There is no penalty. Congress, again, is free to do that. Absolutely nothing changed what the Supreme Court had told all of us is the law. And that is still binding now. So we know, definitively, shall, in this position does not mean must. Whatever it means in other statutes, the Supreme Court definitively told us that shall does not mean must. Chief Justice Roberts knew what he was writing. If you look at the decision, page 567568 chief Justice Roberts spoke about their all sorts of people who will not be subject to the tax. It was in the original statute. So the question is, chief Justice Roberts says, we would expect congress to be troubled by the prospect of making all of making all those people outlaws. But nevertheless, chief Justice Roberts says it suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lou of buying Health Insurance. So the Supreme Court gave us the answer already, and this ties in, then, with my overall theme. What the plaintiff states are asking here, and frankly what the District Court did, is entirely inconsistent with how we know courts are supposed to act. Because we know that courts are required to uphold, to give a statutory provision a possible interpretation, if that is constitutional as a put one that is not. And we know under severability, you are directed, youre instructed, to save everything you can, unless it is evident. So the burden is on the other. It is evident. That congress would not have meant that. What have preferred no statute. So judge elrod, both you and judge englehart are quite correct to say we do not always trust to statements by even the speaker of the house and the Senate Majority leaders to tell us what something means. But, remember, we dont have to show that congress would have wanted this court to keep that language. The burden is on the other side to say it is evident. Thats a high standard. That Congress Wanted this entire statute to be struck down. And so the District Court judge elrod it does not have to have wanted it to. It is a hypothetical. No, the Supreme Court has said in any number of sit severability decisions, that you must uphold. The Supreme Court said the Supreme Court said in a number of severability decisions, that you must uphold. Congress did know what had been done in nfib. It was aware, and Congress Said, ok, we are going to zero out the penalty. Texas says, caught you you just did something unconstitutional, because you left in place the individual mandate but you put the tax at zero. You just did something unconstitutional. But theres another way to read it. The other way to read it is the Supreme Court said, you have not done anything constant unconstitutional. You made the tax zero. Everybody agrees congress has the power to do that. That simply means the choice that chief Justice Roberts made clear to all of us is there. I know texas is unhappy with what chief Justice Roberts did. They wish he had done something different. But he didnt. And thats the majority of the Supreme Court. And that was binding. And that was binding on the District Court. Judge elrod if you dont believe obviously you dont believe that the statute changed. Its changes have made that not a possible reading anymore. That is not correct your honor. Because the change was some thing congress could do. And it made clear, through this change, that there actually was even less coercion and there was before. Again, remember, before, chief Justice Roberts said, even with coercion, even when faced with his major tax penalty, you still have a choice. Judge elrod isnt that the degree of coercion is an issue. Any coercion is inappropriate unless it can be justified. Its not the degree of coercion, its whether or not is tied to a revenue producing rule. Isnt it . No your honor. That i dont think is the question here. Judge elrod that wqe essential to nfib. Mr. Letter in withdrawing from that, the Supreme Court said there was a choice. You either shall maintain Health Insurance, or you shall pay this tax penalty. And congress has now said, it we do not want there to be any tax penalty, the ones who did speak, we want the American People to continue to have a choice. We want to make it even easier choice for them. Judge elrod do you want to address your clients standing . Or are you just here to be prudential assistance today . Happy to, your honor the main thing i want to say to you is that under your precedent, you do not have to decide whether we are properly and intervenor here or not. The ruiz case is binding law of this circuit because there is article three jurisdiction. Nobody can doubt that. Under windsor, it is quite clear. I think all the parties agree on that. California, it is argued by my party colleague. This court does not have to address standing to intervene here or not. We believe the judge got this right. Judge engelhardt what about Justice Ginsburg . Did she get it right in the house of delegates case . It is written pretty generally, and it is a new case. Obviously she got it right. She voted with the Supreme Court majority. So she its right. You and i both know that, but remember there, the Supreme Court majority was dealing with a state. Judge engelhardt she put it very generally. When i first saw the opinion in light of this case being on our docket, i was drawn to it. And i thought it was probably written about the Virginia House of delegates, and about how that states legislative framework is set up. But maybe a little to my surprise, and yours as well, it seems as thought the opinion is written in very general terms. And remember my first statement is you do not have to reach this. Under ruiz, you do not have to. Yes, i think there are one sentence or maybe two frames broadly. The rest of the opinion makes clear that Justice Ginsburg and the majority were talking about state, which is obviously what they should do judge engelhardt i guess we can all read and to quote well from it. I do not read it that way at all. Relegating her statements to two staments we should overlook is, i did not get that from the opinion at all. Your honor, your honor, i cannot do at this moment but i could reach you all the times. In virginia, only the attorney general can litigate for the state. Thats not true for the federal government. We know, for the federal government, actually, congress has provided, and the Supreme Court has recognized, all sorts of people can let a get for the United States. For example, we have key camera raters. inaudible 28usc530d in combination with the child a decision, the chada decision. You combine shada with 530 d, the executive must notify both houses of congress. I am one of the peoples it is supposed to notify when it is going to quit. When it is going to let down the American People and not defend the statute like this, even though their obvious leave valid arguments to be made in support of it. Judge elrod if a coequal branch of government says something is unconstitutional, havent they taken an oath that they wont be trying to uphold unconstitutional things. Unless you believe that judicial supremacy is so vast, that a branch isnt even allowed to have its own opinion at all. Good point, your honor, but judge elrod do you agree or disagree with what i just said . Im going to agree and point out the Justice Department has for many, many decades had the position that it will defend acts of congress if theres a reasonable defense for them. And here, the Justice Department, there clearly is a reasonable argument, i assume whether you agree or disagree, it was a reasonable argument and ultimately the Justice Department finally said yes, and we wish it were otherwise. Have done that. But, chada says, and their batch of cases, this circuit, the 10th circuit, have cases where you have had situations where the house and the senate, or the house alone, has intervened, and defended constitutionality judge engelhardt i want to ask you about that. I assume since youre here on behalf of the house, youre speaking on behalf of the house of the 111th congress, the 115 congress, and the 116th congress. Only the 116th congress your honor. Judge engelhardt were talking about intent. You have spent a particular amount of time talking about the intent of the 110th congress and even more time talking about the intent of the 115 congress, the tax in 2017. Shouldnt we also question why the senate is not here to talk about intent . The will of congress when necessarily implicate the senate, wouldnt it . And why would they not be here to make the organs youre making . Your honor, the answer is, remember that we are pointing to the text of what Congress Passed in 2017. We also like judge engelhardt you pointed us also to some quotes from members of different parties of the congress in 2017. It seems like we are back to the tax, which im very happy to hear. You should take comfort from the fact that the speaker of the house and Senate Majority leader agreed on this. But lets just go to the text. The text is, we got rid of the penalty, we put it at zero, and we left the entire rest of the statute intact. Judge engelhardt why would not the senate, upon being notified as you suggest, by the executive, why would the senate not also be here to say, oh, this is what we meant when we wrote this . They are sort of the 800pound gorilla thats not in the room. Your honor, the senate operates differently from the house. I cannot speak for the senate. But it does not differently from the house. It does not matter. Im not i giving you arguments. Im not saying that you should rule this way because this is the position of the house. I am saying, with the proper respect, you must rule this way because the Supreme Court told us in nfib what the statute means, and in 2017, the Congress Said what it meant in the text. And we know what your responsibilities these are in upholding your response abilities are in upholding any statutory language that you can, in regard the severability area. It has to be evidence that congress would have preferred to have no statute at all. There is no evidence of that. Not a little evidence. Theres no evidence of that. If the court has no further questions, i will say the rest of my time. Thank you, your honors. May please the court, kyle hawkins for the state plaintiffs. As it stands today, the Affordable Care act presents a standalone command to buy an insurance product that the federal government being suitable deems suitable, and it does so without raising a dime of revenue. The text of the Affordable Care act declares that mandate essential to the law in the goals the Congress Wanted to achieve. The Obama Administration thought of that as an inseverability clause. The District Court correctly synthesized those considerations with the Supreme Courts holding in nfib and it reached the correct conclusion. The individual mandate is unconstitutional and it is inseverable from the remainder of the law. Judge elrod can we talk about that essential term, because that is also used in reference to arisa, and other law in the statute. You are not here, trying to strike down erisa, are you . Saying it is inseparable from arisa . No, your honor. The aca includes what amounts to an inseverability clause. The individual mandate, not the penalty, but the individual mandate is essential for driving people to sign up for Health Insurance, which is essential for achieving the marketplace reforms that Congress Wanted. Congress wanted universal Health Insurance and congress declare the mandate essential to achieving that goal. Judge engelhardt theres some mention in the brakes about provisions in the aca that amended criminal statutes relating to Health Care Fraud and things of that sort. Is it your position that congress would not have made those changes but for the monolith of the aca . My position is that the best evidence of what Congress Wants to do is in the text, and the text includes this inseverability clause and so i think it follows from that that the acas minor and major provisions are all inseverable from that clause. Indeed, that is not just my conclusion. Every Supreme Court justice who has looked at this question has concluded that the individual isot severable from any other poriton of the Affordable Care act. All who looked at nfib reach the same conclusion. The six justice majority in king v. Burwell, discussed the mandate as operating as part of a three legged stool, to use the term of the d. C. Circuit in the lower case. Judge elrod what do you say to those who would say that it is absurd to say that it is not severable from a restaurant calorie guidelines . What you say to someone who says that . I would say that im not in a position to psychoanalyze congress. Indeed, the courts are not to engage in psychoanalytical tasks. Im not in a position to guess what congress would have intended. What i am in a position to do is to look at the text of the statute for the court today if the court were to go back to the law library and pelagic current copy of the u. S. Code, as it stands today, the court would see a command the American People to maintain central coverage and no revenue raising capability of that law, and it would see an inseverability clause that this man it is essential. Congress had multiple opportunities to excise that in severability clause from the language of the statute. A food going to look at what if we look at what Congress People may have wanted, i think we should take into account that judge oconnors decision has been on the books now for seven months, declaring the unconstituional mandare inseparable from the rest of the law. Congress has done nothing about that. If congress thought that conclusion was wrong, it couldve gone back and excised the individual mandate from the law. It could have excise the inseverability clause from the law. It has not done any of that. I think that demonstrates that congressional intent is not monolithic. As your honors correctly observed during my calling on the as might colleague on the others spoke, the best evidence is the text itself. I would further submit that if congress believed that the inseparability clause was no longer appropriate, if it believed that the mandate was no longer necessary to the law, it had a duty to excise that statute from the law or that section from the law. But it did not do that and it is not this courts role to act as a legislature and cut sections out of the statute that congress has had the opportunity to amend but has not done so, simply because the court thinks, as my friends on the other sides suggest, that it can guess as to what various Congress People were thinking about. Judge elrod can you comment on justice thomass opinion in murphy, that we dont have our blue pencils in any regard say, as applied to these parties, were not going to apply this law . Yes your honor, in murphy, we do not have a severability clause or an in severability clause. The issue is whether the professional and amateur sports protection act must be struck down in its entirety, including the advertising, notwithstanding the constitutional portion that commandeered the states in violation of the 10th amendment. I think our view today is entirely consisrent with justices thomas and murphy. Here we have an in severability clause. Courts treat in severability clauses as almost dispositive. We saw that in nfib itself as to the Medicaid Expansion. Seven justices on the court voted to uphold the Medicaid Expansion unconstitutional and they decided to sever that portion from there made her the aca. And they did so because the medicaid act contains an in a severability clause. If courts treat severability clauses as almost dispositive, they should do the same with in severability clauses. Murphy did not speak to that issue as clearly as the Affordable Care act speaks to the issue of severability before the court today. Judge elrod counsel, could you speak to whether or not we should be treating this as an injunction, as opposing counsel argued . Judge elrod, we think that we got the District Court, at least effectively. Judge elrod i thought you agreed with them, even though it says this is not granting an injunction, instead granting partial Summary Judgment on this declaratory judgment. Right, so in District Court, we of course asked for a nationwide injunction enjoining the enforcement of the aca. And we asked for a declaration that the individual mandate was unconstitutional, and inseverable from the rest of the aca. Judge oconnor asked in oral argument about the relief we were seeking we represented we would like a nationwide injunction as well as a declaration. The federal governments position before the District Court was that an injunction was not necessary. The government asked the District Court not to enter an injunction. They said we dont need one. Were going to treat the declaration as though it were an injunction. Were going to comply. Judge engelhardt do you agree, i think on page six and 10 of the latest submission from the government that this relief, the ruling from judge oconnor doesnt extend beyond the plaintiff states in this case. Do you agree with that . Where would we go if we were to affirm judge oconnor and send the case, assuming it doesnt obviously go higher, if the case went back to judge oconnor, what would he do, what would your spec him to do, if youre seeking injunctive relief, and the federal government is now saying that, well, no worries, this ruling only applies to the plaintiff states. Would that be satisfactory . Your honor, i think it would depend on what the federal government does. They judge engelhardt you have already said that they do not think the ruling applies elsewhere. And thats a disappointment to us because we think thats inconsistent to what they represented to mr. Oconnor in the strict court. If they were to, following the conclusion of this case, assuming its affirmed, they would have to evaluate if we have been the victim of a date and switch and we might have to go back to District Court and seek the injunction we did not get initially. Judge elrod if the court determined if you are entitled to it legally, if the court ruled on the partial Summary Judgment, and then you have to go further back for the relief, the remedy has not been spoken of yet. I think thats right your honor. That we will go back to District Court. Whether or not we need to seek injunction, im not prepared to make a representation on that today. I think it will depend on what the federal government does going forward. Judge elrod im not saying you are entitled to any injunction. Im saying that to the extent that you say we thought we already had one or Something Like that, you are not to that process yet. Its a partial Summary Judgment. Were just taking the federal government at their word. I think now theyre briefing, the supplemental briefing to suggest it only applies in the 18 plaintiffs states. I dont think thats the message we heard from them in the District Court paired will be evaluating options moving forward as to what further really we may need to seek for the relief we may need to seek. Judge elrod do you want to address your clients standing . Yes, your honor. Id be happy to do that. First there to be no doubt that this court has article three jurisdiction for the reasons that are calling will represent soon. The individual plaintiffs have an article three injury. That is enough for this court to proceed to the merits. If im wrong about that, it is important to note that the states have standing in their own right because the Affordable Care act because of the states a classic pocketbook injury. We of course have evidence in the record including the cbo reports which looked at the mandate and said that this is going to encourage people, and indeed cause people to sign up for Health Insurance, and it will do that, regardless of whether or not there is a penalty attached to it, because people feel a duty to comply with the law, even if there is no penalty attached to it. Just a few days ago, all nine justices in the u. S. Supreme court agreed that a state has standing to challenge federal action that might have the predictable effect of causing third parties to act in ways that injure the state. Judge engelhardt do you agree that mr. Siegels clients also have standing . We do, your honor. We agree on the basis of our understanding that this courts declaration is meant to apply nationwide and would have the effect of an judge and injunction. And we dont that if it were to apply nationwide it with because a classic pocketbook injury to states and that they would not get funding the aca makes available. Judge elrod the thirdparty census issue. Can you address whether or not this printing of this form in missouri is 50,000 worth of standing, so to speak. Yes, i think that is an independent basis. Judge elrod or is it not, because they say it is not really pursuant to 5000a. It is not in the text of that, but it is in the in permitting forms. Where they where they have january through december laid out. As employers we have to go through and check boxes to say which month our employees had Health Insurance. I think it is fair to say that that is traceable to the individual mandate which requires continuous covered except for short gaps. Judge elrod is there anything in the records that indicate that any of these requirements, checking off the box, i guess i will ask the individual plaintiffs attorney, checking the box or setting up these forms, is no longer required, or no longer take place . Is there anything in the record that indicates that . Theres not that were aware of. As far as we know. We have not heard from the irs that theyre going to do anything differently for next years tax forms. We havent seen as yet. But what we do have is evidence in the record that those forms injure us. There is nothing in the record that indicates that that is going away in light of the tc j. I think youre on is right that that is an independent basis for our injury. Judge elrod it is a question, not a statement. ,, i think that is the basis for injury, as is the cbo report. The aca causes a classic pocketbook and read to the states. And that should be the end of the standing analysis. If the court even gets that far, if it were to have doubts about the individual plaintiffs standing. I would like to dress a few points that the other side has raised in their presentation. First and foremost, i think the other side, particularly mr. Letter, is seriously misreading the Supreme Court decision in nfib. It helps that the initial mandate is unlawful, that 5000a is best read as a command to buy insurance. And it held that the commands despite being unlawful can only be saved if it is fairly possible to read the law as a tax. It follows that ifthe law cannot be read as a tax than the original holding stands and commands unlawful. I think it is important to understand the structure of chief Justice Robertss opinion and how he gets there. In part iiia of his opinion, he looks at the mandate, only the mandate not the penalty. He says the best way to read that is as a command to buy insurance. He says two things. One, that his command to buy insurance. And two, that command cannot be justified by the Commerce Clause or by the necessary and proper clause. Thats the end of iiia. He then shifts gears. In parts three b and three c of his opinion. He says, given or holding we need to determine if there some way to save the individual mandate. What he finds out in iiia and three b and three c, given that the penalty is raising revenue for the government, he says we can glue the individual mandate provision to the penalty provision. Once theyre glued together, then they function as a tax such that the law can be saved by construing this as a tax, and that tax is available under the federal governments taxing power. Now, what happened in 2017 is Congress Took away everything that supported parts iiib and iiic of chief Justice Roberts opinion. This is no longer raising any revenue for the federal government. It no longer can be fairly characterized as a tax. So in light of the tcja, parts three b and three c of chief Justice Robert opinion are irrelevant. The only thing we are left with is part iiia of chief Justice Roberts opinion where he holds that this is a command for insurance 00 judge elrod we do not need to be read to from the Supreme Court opinion, do we . I think we read the Supreme Court opinion fairly in light of subsequent events. The entire basis of iiib and iiic is now off the table. Chief Justice Roberts in iiia holds that this is a command. This is supported by the four dissenting justices. There were five votes on the Supreme Court that it is a command not justifiable by congress pattern are the necessary and proper clause. And the best evidence is just as ginsbergs dissent. She faults chief Justice Roberts for discussing the Commerce Clause. She said this is obviously a tax. We should say this is a tax and be done with it. Chief Justice Roberts rejected that in part 3 d . He says i have to reach a Commerce Clause holding. I have to read it i have to give it the best reading possible and then i have to assess whether that that best reading is constitutional or not and only after doing that analysis, then do i get to the taxing issue. I think that interplay between chief Justice Roberts and Justice Ginsburg shows that ourreading of nfib is correct and the other sides reading is incorrect. There are differences between the four different parts of Section Three of chief Justice Roberts opinion. Judge elrod what if it said, you shall buy insurance, but if you do not, you get an Ice Cream Cone. You actually get something if you do not buy the insurance. What is the answer then . I am not sure how congress would justify that under its enumerated powers. Judge elrod the question is about does the shall matter even if you are given positive incentives cannot do it to not do it. I am not sure how that would be fairly read as a tax read as a tax. You would have a command to buy insurance and im not judge elrod is it still a command . It is still a command, your honor. Judge elrod what if you get a house instead of an Ice Cream Cone . It is still a command to buy insurance. That is the holding in part 3 a . Judge elrod it is not an Economic Analysis at all . They cannot do that. The question is whether that command, your honors hypothetical, can be glued to something somewhere else in the statute. That is what the chief did. In the house buying hypothetical, that would be the question. I cannot think of how it would save it. But that is how the analysis should play out. Judge elrod could you address the writ of erasure fallacy . Why is striking the word shall a textbook example if theres no Government Official enforcing the word shall . Your honor, i think its important to tie it back to the relief we are seeking. We are asking for a declaration that this law is unconstitutional. The mandate is unconstitutional and were asking for an injunction against the enforcement of the individual mandate and against the Affordable Care act. Judge elrod not just the striking out of a word. We are not asking the court to get out and a racer or tear pages out of the u. S. Code. We are asking for specific forms of relief. A declaration and injunction. I dont think there is any writ of erasure fallacy. Were not asking the court to erase anything. Do you have any citation . I dont believe, and one of you will correct me if im wrong. I do not believe Justice Roberts in the nfib opinion opined that all on that because he did not reset issue, having found as he did in the prior sections. Is there anything you can cite us to, like a best case, that might suggets how severability would be viewed by Justice Roberts . Ive read the dissent, of course. We know how they feel about it we know how they feel about in the context of that is. Is there anything you can point to that would suggest severability in this case for Justice Roberts, in particular . I think the best case of that would be king v. Burwell. That is about the various subsidies that go along with exchanges. Chief Justice Roberts, in describing how all this works, talks about the individual mandate as being essential to the functioning of the other Health Care Market reforms that the aca sought to achieve. He in particular calls out the guaranteed issue and Community Rating provisions. It has always been understood by the obama and Trump Administration that it all fits together. Chief Justice Roberts does speak to that. I think that is the clearest statement all caps we have seen that the chief would agree. Judge engelhardt so the language he uses broad enough to consider . You are asking one of your colleagues was arguing and they mentioned the guarantee issue and the Community Rating amongst some other specific provisions that are intertwined. Do you believe that his statements in king v. Burwell are so broad as to include the entirety of the statute . I think they are, your honor, when combined with you are asking about chief Justice Roberts specifically. He indicated in numerous occasions that text controls. We start with the text and when it is clear and is positive, we do not look further than that, so i think he would agree that the inseverability clause, it should be be respected. I believe the chief justice was in the majority, declaring the professional and amateur sports protection act unlawful in its entirety. The court reached that conclusion without the benefit of an inseverability clause that we have here today. So i think to answer your honest question, theres ample jurisprudence to suggest that if one is committed to the text as chief Justice Roberts is, it follows that the entire Affordable Care act is inseverability from the constitutional mandate. Judge engelhardt my question was limited to the justice. He is the author of the two opinions we have been talking about a great deal today. That is correct, your honor. Every judge has said the individual mandate is inseverable from the rest of the law. Four for four in nfib, you combine that with the opinion in king v. Burwell, which was six justice opinion, which shows that it is correct, not separated from the rest of the law. Do you have a skelly oil problem . No, your honor. Skelly oil that is a case about the federal question of jurisdiction. What he was saying was that even though there is a federal statute, that does not get you into federal court automatically just by invoking that statute. Instead, what the court needs to ask, under the inverse hypothetical course of suit, would that belong in state or federal court . If the hypothetical course is followed, you do not get into federal court just by virtue of the judgment act. That is what skelly oil is saying. The hypothetical inverse course of suit to enforce the aca will be brought by the federal government and arise under federal law. There is no skelly oil problem here. I believe the federal government agrees with us on that. They have a footnote on the brief actually. I see i am just about out of time. I am happy to answer any additional questions. Otherwise, we would ask the court to affirm the judgment below in its entirety. Thank you, your honor. I am with the Justice Department here on behalf of the federal government defendants. I plan to go through three points. Ill go quickly through the ones the court has already addressed in detail. The first, why this court has jurisdiction to address the merits. The second is why the plaintiffs claims succeeds on the merits and third, why the District Courts judgment should be limited to injuries the plaintiffs have standing to pursue your. First, in the courts supplemental briefing order, some of them are complicated, but there is a simple answer. I think all the parties agree, which is this case follows the windsor model. Critically, to that, the United States continues to enforce the aca and it will do so pending a final resolution of this case. Given that enforcement, that is sufficient to have an article three controversy between the plaintiffs and the United States and of course the participation of the intervenors is helpful to ensure a vigorous adversary presentation of the issues and thats basically exactly what happened in windsor. In both cases, the executive branch made a judgment that the statutory scheme was administering was not constitutional the Supreme Court discussed the conundrum faced by the executive ranch and decided this was a reasonable way to allow the Judicial Branch to have the final say. You dont believe that the executive branch is required to continue to enforce . Its a choice, right . I think i mean, i think theres an enactment that might theres enactments that might be constituional to a criminal law on the books but not constitutional but the executive branch can simply not enforce it and it would never get to court. It is not because it may be prudential for you to wait for judicial supremacy but its not required. I think thats correct. But youre choosing to here. Yes, the executive branch is continuing to enforce the aca pending outcome. The Supreme Court discussed this conundrum in windsor. The majority accepted this as a reasonable way to manage, especially when you have a complicated statute that covers a lot of ground. That is what is happening here. The second point on jurisdiction, as we think the individual plaintiffs have standing based on the combined impact of the mandate which requires them to buy insurance, and the insurance reforms which ensures the insurance they must buy is unsatisfactory. That is an injury that is sufficient for District Court jurisdiction to evaluate the merits of the case. Judge elrod does the government take a position . Any special solicited under the massachusetts case . We dont have a position on the standing. The District Court did not address the states standing. It raises a variety of issues. Our position is because the individual plaintiffs have standing, it was simple at the adjudication stage to and the District Court probably handled things correctly in saying given they have established standing, the court can go ahead and address merits and not get into those other issues. By adopting the position that the District Courts ruling applies only to the plaintiff states and the individual plaintiffs, is that not designed to reflect on the lack of standing of the intervener states . Yes. The question with the intervener states is, do they have standing to appeal the District Court judgment . And there, you look at the declaratory judgment. Under that declaratory judgment statute, it declares the rights of the plaintiffs visavis the United States. It does not say anything about the rights of the intervener states or the house, although theyre not talking about that. So, i think the way to handle that issue and to probably not fully satisfy the intervenor states is to make clear that they would not be bound as an estoppel matter because they are not participating as parties withstanding. Judge elrod they would bring their own case, summerhouse or here, too, if they were eligible . I dont want to suggest anything. Judge elrod everybody else here says the District Court opinion says what it says. They say this was in lieu of injunctive relief and the government says the government is smack dab in the middle of all of this understanding, and you are saying something different. The District Court issued a declaratory judgment. The final declaratory judgment declaring the right between us and the plaintiffs, the federal government will follow that judgment as to what the law means between the parties. Texas talked about only doing it in their states. We will actually do it with respect to the plaintiffs. If that means additional actions would need to be taken that had an impact beyond those states, that would be part of following the law as declared by the District Court. So it is a declaratory judgement. I dont know that there is a big daylight between what an injunction would mean and what a declaratory judgment would mean at the end of the day, once there is a final ruling. And you know, and so, that gets me to the point. A lot of these technical issues are important when you are talking about District Court judgments, but a case like this likely would end up with a precedential decision of this court or the Supreme Court. It binds it as precedent. There are technical issues on the scope of the judgment how that would work in different contexts. Judge elrod counsel, the District Court was modest in the extent it granted a stay of some order pending all of this going on. What if that stay were not in place . What would happen . What is the government planning to do . Again, we think it is great that the the stay is in place. This is a complicated program, a significant part of the economy. That was important to the United States. As far as a how compliance for the declaratory judgment that is final but on appeal, i think that raises complicated issues. We are appreciative of the stay, those do not need to get sorted out until there is a final ruling and the case is fully resolved and the appeals are exhausted. Judge elrod but the government believes or anticipates that it could find the act to be inseverable, and do so only in certain states and strike it down only in certain states in its entirety . The government believes thats a possibility . Again, i think a lot of this stuff would have to get sorted out and its complicated. So i think thats one reason the stay was granted. I think how it was applied in which states and how they would injure the states and they are part of the declaratory judgment. I think that raises a lot of complicated issues which i think militated in favor of the stay and militated in favor of getting a final resolution with all appeals exhausted before that step is taken and then go from there. So. Judge elrod your position is we are not nearly there. We are not meeting to remedy at all. There is a final remedy. The aca is declared invalid. If you think thats a little overbroad. Sorry. Judge elrod it does not say where it applies or whether it applies beyond these parties. I think thats right. That comes from the declaratory judgment act. It says we cannot apply the aca to these plaintiffs. If that means we cant apply it at all, that is what it means. We have not gone intervening states have intervened even before the motions were pending in the case. They intervened, if i recall correctly, from the briefs, prior to the amended complaint, so theyre early on. The District Courts judgment doesnt make a distinction i realize the issue was not before it so it could clarify, but it doesnt make a distiction betweren the plaintiff states and the intervenor states. So wh have what we have here in this court. The plaintiffs were seeking the declaration of the rights between the plaintiffs and the United States. They were not seeking a declaration of their rights amongst each other. Judge elrod use the word parties . I thought the District Court used the word parties. I would have to check that. I do not think that would be judge elrod does that mean the intervenors who were already at the party so to speak . We think that would be a misuse of the judgment act given i do not think they would have a basis of seeking a declaratory judgment against the state. We are the ones who enforce the aca. So i just dont think that would work. Reading parties in that manner is reasonable and the way to go there. I think it is a simple solution. The states could get some comfort if this court made clear they would not be estopped or bound because of their special status in aiding the court in an adversary position, presentation. Judge elrod thats an interesting statement for you to make. Well, i mean i just we think that is how the law would work. The operation of an opinion of this court and the district would work that way given the scope of the declaratory judgment act, given the standing issues, and given the fact that it can only declare the rights between the people on the same side of the fence here. Those other rights that can be declared under that statute. The only other thing i would say on remedy is we differ with the plaintiffs is that the declaratory remedy should also be limited to the injuries that are established by the plaintiffs. Again, we think this is more of a technical point. Its a very important institutional point for the government, that District Court judgments should be limited to the dispute between the parties, and the injuries that establish standing for the plaintiffs. Again, we do not think that needs to be sorted out, which provisions the aca would be covered and not the covered because that was not addressed in the District Court. It would require an assessment of injuries to texas, which the District Court didnt conduct. It might all be obviated if there is a precedential ruling from a higher court that resolves these kinds of issues as a matter of precedent. Judge elrod can you resolve that . Its a little bit vague. It seems there is an argument that it was inseverability all the way. But then the government said theres only a couple of the other provisions which would be wrapped up in it. For example, the restaurant provision would not be wrapped up in it or these criminal laws. What is the governments position . It is inseverable from the other two parts that i cant think of the name of right this second. The mandate . And also the insurance reforms. Judge elrod so it is inseverable from those but not for the rest. Is that right . Our argument on the scope of the judgment is totally separate from our argument on inseverability. Severability, you look at what the unconstitutional provision in light of the statute as a whole. As the dissenters in nfib looked at you cant really access it without analyzing the whole statute. It it was all an acted together. Judge elrod are you saying it is entirely inseverable now . Some carts could be that some parts could be kept . The whole thing must go . Our position is that the entire act is inseverable. The judgment might still be limited. The judgment of the District Court should still assess the injuries that these various provisions caused plaintiffs and should not declare a provision that has no impact on the plaintiffs to the unlawful based on applying severability. So the court might say the reason this is inseverable is because the whole statute rises or falls together. The findings work as a nonseverability clause. We have all this assessment of severability that looks at the statute as a whole. So as far as the District Courts or this courts legal reasoning, you can say the statute rises and falls together. The judgment needs to be narrowed a little bit. The declaratory judgment to those provisions that injure an impact the plaintiffs. And send the case back. Judge elrod you didnt litigate that in the District Court when the District Court was writing the partial declaratory judgment. I mean, i think judge elrod i mean, to the extent we think it is an article three issue. We did raise it in our brief for the court for the first time. We do think, given that, it would be appropriate to remand to consider the scope of the judgment on that point. But again, we think it is more of a technical point because, again, the severability analysis requires looking at the statute altogether. And obviously, theres precedential impact of this courts decision or a higher courts decision that could make sorting out a lot of thosae details unnecessary down the road. Judge elrod thank you. I think we have your argument. Thank you. Good afternoon, your honors. May it please the court. My name is robert henke with the Texas Policy Foundation on behalf of the individual plaintiff. They have standing to bring this action because they are directly injured by the Affordable Care act and the relief they seek would redress that injury. My clients clearly have an injury in fact, pocketbook injury. It is the law of the land that they have to purchase a product that they do not want. And to your point, your honor, the record is undisputed on that. Citing to the record on appeal were mr. Hurley states i am obligated. Mr nance states i am obligated to comply with the Affordable Care acts individual mandate. Furthermore, the record on appeal, 636 and 640 i clients are additionally injured by expensive coverage, loss of dr. Choice, decreased quality of care and rationing of care. They also must incur the cost of irs reporting requirements related to the filing of their taxes and compliance with the individual mandate. In response to the appellants claim that my clients injury is selfinflicted, one only need to look at the text of 5000s subsection a, which mandates certain individuals shall ensure they are covered under Minimal Essential coverage. Noteworthy also are the exceptions which provide certain other individuals remain subject to the mandate but are exempt from the then penalty for noncompliance. The aca contemplates the individual mandate carries the force of a command because categories of persons are subject to it without the penalty. In the individual mandate. Yes, maam . So, its your position that those people would have standing even if they were not buying insurance, if they were in one of those exempted categories . Back at the time of the original argument, i believe Justice Kagan asked a question about that, whether or not people who dont have to pay the penalty automatically who are exempt, would they have standing . Theres still a command there. Its a great point you bring up, your honor. I want to go back to the history of nfib and address the claim my clients harm was selfinflicted. The shared responsibility, the choice is alleged by appellants was not effective until 2014. Nfib was 2012 and before. The sole basis was the individual mandate, not the penalty and in denying the governments motion to dismiss on standing, the nfib trial court as did judge oconnor correctly held that the individuals had an injury. This argument was carried through the 11th circuit and all the way to the Supreme Court, where it was addressed during the first day of argument in questions from both the chief justice and Justice Kagan. Justice kagan was questioning the attorney for nfib. Now judge katzes and Justice Kagan asks, do you think a person who is subject to the mandate is not subject to the penalty would have standing . He responded yes, i think that person would, because that person is injured by compliance with the mandate. Justice kagan asks, what would that look like . What would the argument be as to what the injury was . Mr katzis replies, the injury, when that person is subject to the mandate, that person is required to purchase Health Insurance that is a forced acquisition of an unwanted good. It is a classic pocketbook injury. Judge elrod council, what do you say to those who might say, they argue that but the court didnt actually make a standing. It would be considered a driveby standing. Some people use that colloquial term. What would you say to that . While there might be questions on a topic, it does not mean we have answered a question of certain way. We cannot say that the Supreme Court nfib did proceed forward to resolve the merits of the case. I believe its implicit that it was resolving this question of the individual plaintiffs standing in the affirmative by reaching the merits after oral argument. I think the trial court correctly did so here. If you look at the case history, this is ground that has been well covered. Individual plaintiff standing has been addressed and resolved. And again, going back to the text of the aca, the other sides argument is wrong because the choice language only arises in the context of and a mandate was recognized as not being a choice in Section Three 3 a , when chief Justice Roberts found it was best construed as a command to buy insurance. I would also like, your honor, to address a second path to traceability, and that was addressed in the notice of Supplemental Authority that we filed left we with regard to the Supreme Court Case Department of commerce vs new york. We already argued how my clients injury is directly traceable to the individual mandate. Point to the courts record on appeal. Without the individual mandate, mr. Hurley and nance would not be required, in violation of the constitution, to maintain specific Health Insurance coverage nor would they be subject to an increase regulatory burden. The Supreme Court recently upheld standing as a result of quote, the predictable effect of government action. Action and that is at slip opinion page 11. Traceability in department of commerce was met when third parties reacted in predictable ways to the citizenship question, even when they did so unlawfully. Here, the predictable reaction is lawful. Purchasing coverage is the likely unpredictable reaction to the individual mandate legal command. New york relied on Historical Data to show predictable effect. In this situation, both the 2008 and 2017 Congressional Budget Office reports conclude that some individuals will comply with the mandate absent penalties. If we were inclined, assuming, to take that argument, would that mean we would have to overrule our other opinions which might say that thirdparty causation is not enough to generate standing . Here, what we have thats even better, though, is the direct evidence of the individual leg gives that is greater evidence to establish standing. You dont need that argument. We dont need the census argument. I think it bolsters that traceability argument. And explaining how it is fairly predictable and supports the testimony of my client that the command in the statute is what they have done, it is not the predicted effect my it is what happened. And the result of that is that they continue to maintain minimum essential coverage because the law says they have to. Going back to the record, which was not disputed in 637 and 641. Unless there is additional questions, we request that you inform the trial court judge. Thank you. Thank you. Are we going in a different order . Yes, we are, i am arguing rebuttal for seven minutes. Thank you. If i could pause for one second, this is why i became a lawyer, i hope you are enjoying yourselves as much as i am. Also i apologize, i was remiss before, like to introduce mr. Jeremy creaseberg. I have several points in response to the arguments that have been made. The first is judge elrod, you asked the key question about, you mentioned the menus that would be struck down. Remember the kinds of provisions here that would be struck down if there is no severability is for example, the provision about when you can be denied, your charged more for preexisting conditions that provision that children can be kept on parents insurance until age 26. These would be struck down if there is no severability. Quick isnt the house the best entity to remedy, cant they put together a cafeteria style package of all these individual features that are so attractive, the ones you are talking about an popular in various quarters, cant they put them together and vote on them like that and pass all the things that and root out the issue of severability here . It is both the congress and president. Sure, but it would start with that house. That is who you represent. The president would sign that it know, obviously not. That is the point. Thats exactly the point, because theres a political solution here that you, various parties are asking this court to roll up its sleeves and get involved in. Isnt that exactly the point question mark in that why the senate isnt here . No, your honor. Truthfully, truthfully. That is not the point. Why is it why does Congress Want the article three judiciary to become that taxidermist for every legislative biggame accomplishment that congress achieves . Congress can fix this, it can fix it after nfib. Yes, your honor, that very same statement would be true in every severability case and yet we know the Supreme Court has said to you, congress does not have to fix this. You can fix it and the Supreme Court has told you how to do it. Maintain everything you can i can stand on its own and be constitutional. The Supreme Court has ordered you to do that. There is another option. Every single severability case is going to, the very same question could come up. If i might add one more thing, Supreme Court cases are legion. Mr. Hawkins said you should draw importance from the fact that congress has not passed a new statute. The Supreme Court has said over and over again that is wrong. You cannot and should not draw any meaning from that because the members of congress and the president might feel that the law is absolutely clear and therefore, there is no need for further legislation right now. If this court does what the Supreme Court has instructed, you will keep in place the overwhelming percentage. I take your point, your honor, and i take it this can be frustrating but remember, every severability case has that same issue. The attorney from the department of justice, we have been friends for many years but what hes arguing here, the doj position makes no sense. For example, there are a batch of provisions in the Affordable Care act that you cannot divide up by state. For example, the Affordable Care act provided for a system of biosimilar drug approvals so the fda would approve certain drugs that otherwise it might not have. The fda is going to approve drugs for sale in texas and arizona but im sorry, the opposite is going to approve drugs for california and other states but not for sale in arizona . We are not to that point yet. Right now, it is a partial Summary Judgment and so were not to the point where the federal government has to parse that out. The court issued an order, the court did not issue an injunction because the Justice Department said, please dont, we dont like injunctions in situations like this and dont worry, we will apply the statute as your honor rules. I argued that for 40 years when i was with the Justice Department. Thats our standard position there. You cant then turn around and say, oh, so you didnt do an injunction and were gonna say it has to go back to the District Court. The problem is do you want it to go back for the courts to parse through all those. The worstcase scenario, do you want to go back for the court to parse through all of those provisions you were just listing . No, your honor. The District Court has already said the whole statute is unconstitutional and texas and the Justice Department has said that that is absolutely wrong, that is so inconsistent, the severability doctrine. The District Court cant do that . I thought i understood you in response to my question to say we are charged with at least in terms of severability, we are charged with i think i i misspoke. The District Court cant say this provision will be applied in california but not texas. There are parts of the Affordable Care act so its not administerable from the federal governments perspective. California would like to go back to the District Court and say it does not apply in california and that is what i was trying to say all along. We are in total agreement that we think this court has an obligation to now, the District Court has set it up and said now you have the obligation to look at that and say that is not what the law says, that is not what the Supreme Court has instructed. So no, we do not want this to go back to the District Court, the court has already ruled it has to go out to the District Court. If some other thing does not happen in some appellate proceeding along the way, it would automatically have to go back to the District Court. What we believe this should do is you should say the District Court erred. The main thing we think you would do if you would uphold what congress did or the minimum again, we say the law requires this, we say the individual mandate is struck down, but that is so clearly severable because the text of the 2017 act made clear the rest of the statute remains in effect. That would still go back to the District Court, wouldnt it . You would have to fax the District Court and have your rep of proceedings and all the things that would normally happen. [inaudible] i dont think so. Youre right its a partial summary judgement because i believe the rest of it depends on that. If you say you hold there is no standing and the case ends but if you hold that the rest of the statute is actually severable, im not sure what else the District Court would have to do that because that would be the judgment of this court. I am guessing that texas or the Justice Department would take that to the Supreme Court. I dont believe this must go back to the District Court. If we held hypothetically that it was severable, we would say, District Court, do your best severability in the first instance, take out your blue pencil. No, you would do that. Why would we have to . In any other normal case you would send it back to the District Court in the first instance to make its best stab at trying to implement the ruling that we made. That would either normal proceeding in 100 cases we have this month. Its also normal for the court, the Appellate Court to say the law directs that all the rest of the statute based on and i want to emphasize we are talking about the text, the 2017 statute, that all the rest is severable. Thats is what we think. If you were going to find there is standing and stike down the individual mandate, that is what you would do. We think you have to do that. So there would not be any reason to send that back to the District Court to say go line by line and figure out which part is severable. You would have ruled the Supreme Court doctrine says no, it has to be evideny that congress would not have wanted it under the 2017 act, that clearly cannot be done. We need to wrap it up. Im sorry. The last thing i wanted to say, he talked about the inseverability clause. There is no inseverability clause. He is referring to findings in the 2010 act. In 2017 congress made clear that it was getting rid of the mandate and yes leave the entire rest of the statute in place. Including the findings, right . They apply to a different statute. They have not been repealed. There is no reason to repeal the findings. Life has changed and it is a different statute. The 2017 statute. Thank you. Thank you, your honors, and i will try to be brief. There are three points i want to address. The first is about our state standing. As i understood, the federal governments supplemental brief, they didnt say the remedy they were closing wouldnt harm us and with respect, we cannot show that without knowing the scope of the remedy they are proposing. They say the remedy should only apply to the provisions that actually injure the plaintiffs and having to explain how they would administer the Affordable Care act in some parts of the country but not others. The second point picking up on mr. Letter left off, the findings are not in an inseverability clause. It is an enforceable mandate that had a several hundred dollars tax and were adopted for a different purpose. They memorialized the congresss views that an enforceable individual mandate was a proper exercise of the Commerce Clause. That may have also reflected the 2010 congresss view that an enforceable individual mandate was an important and necessary to the proper functioning of the individual markets, but in 2017, Congress Drew a different conclusion and we know that by looking at the text of the tcja and what they did in that act was make the minimum the individual mandate unenforceable, so congress had no need to repeal the repeal the findings in order to express its intent on that point. It just had to act. My final points, your honor, the court can hold the individual mandate is valid or you can hold that its unenforceable. At the end of the day, it doesnt matter. That is exactly what congress did in 2017. It made the mandate unenforceable. What is not fairly open to this court is to use that action as the basis for ordering what the 27th congress repeatedly refused to do and that is repeal the Affordable Care act. Californias not harmed if the court were to say the mandate is stricken, is it . If the only ruling is a declaration that the individual mandate is unconstitutional and unenforceable and it is severed, we are not harmed by that ruling. If there are no further questions, we respectfully ask you reverse the District Courts judgment. Thank you very much. Counsel, we appreciate your arguments in this very complex case and appreciate all of your preparedness today. Thank you. The court will stand in recess until tomorrow morning at 9 00 a. M