Sunday, october 4th, a at noon eastern on book tv on cspan2. And now, Georgetown University law center previews the Upcoming Supreme Court term including one case challenging the constitutionality of the Affordable Care act. They also talk about the potential for lawsuits concerning the 2020 elections that may reach the Supreme Court for consideration and reflects on the passing of Ruth Bader Ginsburg and her legacy in the court and the legal profession. This is about two hours. Welcome, everyone, to our annual Supreme Court term preview. Im executive 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 trail blazing civil rights lawyer, a giant of a juress and a larger than life human being. But what i will remember most about her is her indom spirit. That and the devastate iing ser of questions she hurled my way at oral argument in the will by ledbetter case. In the kind eest way possible, course. At this time, i want to invite any Panel Members who wish to do so to say anything they would like about Justice Ginsburg. But first, let me introduce our panel. D don, paul from kirkland and ellis, nicole from mayor brown, ramon martinez, paul smith from georgetown law and marty lib lieberm lieberman, a also from georgetown law. So anybody who wants to should be on video and take the floor. Anyone want to start . Don . Yeah, so, 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 that argue in front of the court, maybe, i dont know if this is true about you, paul, shes been there for every argument that weve made on the court. And as you said in your introduction, even when you got her vote, she would always put you through your paces with that. Sort of insistence on exactness. On getting everything just right. And i think all of us, when ever 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 a that she dealt with physically, the to be as active and vibrant up to her very last day is just awe inspiring thing. Helps explain i think why she was 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. Thanks, sir, and like everyone else, you know, its still sort of process iing all this, but 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. I was in the courtroom with you, when you argued the Lilly Ledbetter case, so i remember those questions well. You were too modest to mention that 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 sort of leadership and that she provided the courts liberal wing. 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, but also to in a case like that, to prompt a congressional reaction. You know, that was all a remarkable case. To dons point about her dedication the her craft under difficult physical circumstances, i mean, i will, it was a privilege to argue in front of her every time based an her just arduous work habits put you to not just through your paces, but made you a better lawyer because if you didnt know record backwards and forwards, you know she would, so, it definitely kept you working hard late in the night getting ready for argument because she knew, we knew she was working out late in the night get iting ready to ask yo questions including potentially about things lurking deep in the record. The last time i argued in front of 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 literally was asking questions from her hospital bed and difficult questions the 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 as long as she served on the court, decades of service on the federal bench if you include her time on the d. C. Circuit, she never lost sight of the fact that she was an advocate and she never lost the sort of advocates sympathy for what the advocate was going through and the challenges that the advocate faces and thats why irv mentions the Lilly Ledbetter case. I had a few of my own where she was definitely not with me and she was asking very hard questions, but asking them in a firm, but polite manner. There wasnt an edge on the questions. You know, they were firm. But not so sharp edged that they left a scar. 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 in coming up 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 herself involved males as the plaintiff, as the litigant. All as part of her craft. Its remarkable she served as long as she did on the bench but not lose sympathy for those on the other side of the bench. Ive talked to a lot of people, who was it like arguing for Justice Ginsburg. For the most part, like paul and i think don said, she played it straight. Her questions were straightforward. They werent slanted and they were clear. The thing that i liked the most and maybe this is because i was an assistant was that she always use our name. She said miss zahraski, i have a question for you. I thought, wow, she knows my name. I couldnt say that about the other justices stooms i felt we were interchangeable cogs to them. To have Justice Ginsburg who is such an icon, wow, she knows who i am. Show wrote the opinion in many of the caseses i argued and i just considered that a great honor. She thought it was good. She liked the argument. She wrote opinion. That meant a will tlot to me. More fundamentally, as i think back on it, i really, im in awe of how she was willing to proceed during the Womens Movement and incrementally to bring cases to the Supreme Court at a time when people wanted to proceed faster and when it might have been frustrating to see some of the first womens rights cases involving the rights of men. Its not what everyone else wanted to do, but i feel like there was a lot of voice coming from that. Its something that i think about now, the last few years, at least from my perspective, havent been the greatest in the u. S. For women and thinking about what comes next, i feel like we have a lot to learn from her so im very grateful for that. Roman. It was quite a shock when getting the news. Im someone who came of age and really started following the court and learning in the 90s and early 2000s. And you know, over the last few years, weve lost three. As an advocate and justice, her contributions were enormous across a lot of areas of law, most importantly in the realm of equal production clause and expanding equality to women. The thing that impressed me the most was watching her relationship with the clerks. She had a work ethic. She had these four 20 something 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 she also lost her husband that year and yet, despite everything that she was going through, she just remained the professional, the perfect colleague and a person who had just actively contributes and leading on the court through everything. I think she was a real role model. I think Justice Ginsburg in the last few years had taken on a broad cultural relevance that goes beyond normal Supreme Court justice. I saw it in my own house when he got the mewes on friday news on friday night. I have a 5yearold daughter and she has the rbg childrens books. She took it very emotionally. What she knew about her was Justice Ginsburg had helped, as she said, she took a hard path. You know, i think she meant everything she had learned about Justice Ginsburg becomes a lawyer then becomes a justice. And i think having someone who was a role model and trail blazer, maybe the one comfort that we have, shes dwogone, is that her legacy is more secure in the inspiration shell give to all of us, but especially maybe to young women like my 5yearold daughter, will live on. It is a very tough, unexpected and you know, very sad period because of that. Thank you. Paul smith. Thanks, everybody, for being here. Great to be a part of this panel. I do think its fair to say that her life will never a person who can combine being a leader of an entire revolution of jurisprudence for womens rights and being one of the great justices of this modern time then becoming such an impactful, cultural symbol for women and recently for the whole country. Thats a remarkable trifecta to accomplish in a life. She did it remarkably. I have the same memories others have of being under the gun from her. Early on, i was up there orging a case and somewhat sloppy about what was a jurisdiction in the case. One thing she cared most about was a procedure jurisdiction and i had ten or 15 minutes of being scolded by her to kind of schoolteacher. I clearly didnt know what i was doing. She was occasionally quite helpful. In lawrence versus texas, i had been grilled by Justice Scalia. She sort interrupted and said i want to ask you a question. Just to be clear, you want us to overrule bowers versus hardwick. Everybody sort of sat back and i got five minutes to give my entire spill about the whole case. It changed the entire momentum of the argument. Ive always appreciated that she did that as well. Thank you. Paul marty. Marty, youre muted. Thank you to my fellow panelists. Its also an honor to be among you for this event. I unlike my fellow panelists, i never appeared as an add vvocat. I knew her well through u mutual friends and husband, a beloved member of our faculty and Justice Ginsburg was an extraordinary friend to Georgetown University law center appearing entirely before the first year class and often many more students than that, on at least an annual bases for decades, until this year. Someone counted the number of shes appear and its about two dozen times in the last two years at georgetown. With extraordinary candleholder, but also discretion and inspiration for all of our stay tuned students. She really cared about reaching young people and lawyers. But i guess end by quoting something that i noticed friday evening or saturday, one of her first Supreme Court clerks, david post, uncovered this, im not sure where, but he posted it and i think it captures something that explains the woman and the jury is and Public Servant she became. Sort of the dis tilllation that i think about. Its dated june 1st, 1946. The Young Ruth Bader was 13 years old. In brooklyn, new york. The photographs of the death camps had recently been shared publicly for the first time. I believe it was right before or just 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 that id like to read. I apologize in advance if i break a little bit. I tried this with my students yesterday unsuccessfully, but because i think of her when i read it and i think it, its an extraordinary document. So this was an essay posted on june 1st, 1946 in the bulletin of the east millwood jewish center, the place of the synagogue in her neighborhood in brooklyn. So 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 who were here in the united states, those of our parents and grandparents who are here in the united states, while their relatives and so many others we are in a very Civilized Society and nation being slaughtered in such numbers in such hid fashion. This is what she wrote. The war has left a bloody trail and many deep wounds not too easily healed. Many people have been left with scars that take a long time to pass away. E we must never forget the horrors which our brethren were subjected to in other nadsy concentration camps. Then, too, we should try to understand that for righteous people, hate and prejudice are neither good occupations or gfi companions. As the rabbi once said, prejudice saves it a handful of trouble. The trouble of thinking. In our beloved lands, families were not scattered, nor our nations destroyed by the ravages of the world war, yet dare we be at ease. We are part of a world whose unity has been almost completely shattered. No one can feel free from danger destruction until many torn threads are are bound together fwen. We cannot feel safe until every nation, regardless of weapons or power, will pete together in good faith. The people worthy of neutral 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 pren prejudice or passing circumstance. Then and only then shall we have a world whose structure is the brotherhood and sister hood of men and women. Thanks, marty. And thanks, everyone. At this point, lets begin our scheduled program. Last term was the most consequential in recent number of a sheer number of blockbuster cases. It also had more cases with surprise endings than any term i can remember. At first glance, this term seems like it will be a reversion to the mean. With far fewer block busters and far fewer unexpected results. But lurking in the background is the possibility that this could become the most tum ultimatous and divisive term since the Supreme Court decided bush v. Gore 20 years ago and effectively determined who would be president of the united states. To discuss, well have a panel of Supreme Court experts who youve already heard from. We will be diskuzing 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 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 with ramon in california versus texas. Just going to talk about california versus texas, the Affordable Care act case, or the obama case. Round three in the series of major constitutional and stat ch choir challenges to the act that the court has dealt with since it was enacted. Of course, you have nfib versus sebeli sebelius. I hesitate to talk about that case with don and paul here, who argued the case. Allend the court uphold the mane to Purchase Health insurance as an exercise of congress tax power, but rejected the idea that it was a valid idea. We had a case a few years later. King versus burrwell, that examined a very important question and now, weve sort come full circle because in california versus texas, the court is once again dealing with the question of a mandate, except its in a slightly different context. And so, what basically happened was that a few years ago in 2017, congress amended the Affordable Care act to essential ly eliminate the tax component and i got to be careful what word, im going to try to describe this case neutrally, but words matterer he ehere, bu zeroed out a component of section 5000 a of the law, which is the mandate provision. So it left Everything Else in tact and essentially said that you know, if a person does not Purchase Health insurance, theyll have to pay a tax, but then when it sort of explained what the tax was, it will announce 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 see rzet gives sit sepps the option not to comply, which remains on books, but theres little consequence for noncompliance because you dont have to pay a pemty or tax. Texas, several states sued, and said that by eliminating the tax in 2017, congress had essentially transformed the mandate provision back into a pure mandate that could not be justified under the Congress Taxing Power because again, this tax had been reduced to zero, which meant that if the mandate was valid, it had to be valid under the commerce power, but we know from what the court said that the x commerce power doesnt cover this. Therefore, the machindate is uninstitutional. And in addition, heres the real crux of the case. They said because its so integral to the provisions that require coverage of preexisting conditions and affects the pries 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 has to fall. The california representatives said the mandate as it exists or slash tax of zero as it exists are perfectly institutional. The District Court agreed with the challengers to the statute and essentially said a that the law as it stands is unconstitutional and that it cant be, the mandate cant be served from the rest of the statute so the whole thing has to go down. The fifth circuit agreed on whether the question of the mandate how it stands is constitutional, its not, but remanded to do an analysis on severalablety. The court is not going to address pretty major issues, one is whether the challenger took a lot of standing, the severability question. I wont say a lot about the standing issue. Now although it is an important issue, it does seem to me that if the court on the merit, thinks theres a mandate here that is significant, that will probably l leave it to think that the challengers do think it has standing. The basic argument is about how to construe the statute as it stands. One ination is that you have a mandate now. Its not a tax anymore because tax has been zeroed out. The saving construction case put on the statute essentially rested on it being a tax. A big future of that analysis was fact that the mandate provision taken as a whole raise nevada new because of the tax penalty. Cant raise if the tax is zero. Therefore, the its no longer a valid exercise of the tax power. The defenders offer a couple of arguments in response. One thing they said is that its still a tax or i think as they say, a suspended tax, which is an a interesting formulation, which i havent really heard of before as an exercise of tax power. Theres no coercive penalty or tax. Therefore, its essentially preparatory and its not untuxal and therefore, theres no constitutional problem here. If the court agrees with the challengers that the theres a mandate, then the court gets to the severability issue and the challengers of the law say a that the entire statute has the to fall. They rely heavily on factual findings that congress made in the origin al statute that link the mandate to other provisions including to the guaranteed issue and Community Rating provisions and they point to the fact that when the Obama Administration defend ed the mandate the first time around, it acknowledges that the mandate was linked to those provisions and the dissenters in the case had also said that the entire statute should fall if the statute was uninstitutional. The challengers e revisit those arguments. The defenders say this is crazy. That it would be an absurd outcome to strike down the statute simply because congress in 2017 decided to just eliminate the tax component of the mandate. Its obvious that the congress has been debated the Affordable Care act, including in 2017, considered whether to repeal woel thing and decided what i wanted to do was to make the mandate a toothless mandate, even if its still a machindated had effect, it didnt change Everything Else in the statute, so the it turned on issue of intent, defend eers say that intent is clear, that congress wanted to have a toothless mandate, but didnt want the rest of the statute to fall. Those are basically the legal arguments. Ill offer a couple of quick observation on the case. It strikes me that the case is, 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, their sort of arguing about this big question. You have a situation in which the chief snus justices question was barely plausible. His own opinion seems to concede. You know, if you haed the text of the statute, it reads like a mandate, not as a tax. The chief barely got around to endorsing constitutionality. The defenders of the statute are asking the chief to go a step further and say okay, you saved it as a tax. Now, we zeroed on tax consequences. So its really a tax in the same way, but you should a apply the same logic and say that essentially, its still a tax or its not really a mandate. Even under the new statute. Its a long shot. Im forgetting before the justices airily toe and thomas, who didnt like the argument first time around, seems like a real stretch to get justices kavanaugh and gorsuch on that theory, given that seems unlikely that they would have been with the chief first time around. But who knows. The chief has to make a decision, but even the interesting thing about the case, the ultimate question about whether the mandate is constitutional or not doesnt really have a lot of practical significance. What really matters is the severability question because thats really whats going to have an impact on people if the entire obama care statute is struck county. On that side of the house, it seems like the challengers to the statute have a very uphill battle here. As the e 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 tooth loose mandate coupled with the remaining positions of the Affordable Care act in place and its turned on indication of intent. You have a situation in which the chief justice and Justice Kavanaugh have often and recently last term, endorsed a severability doctrine and a strong presumption of severability. We can talk about details of that, but i think the line that jumps out to me is from a decision that Justice Kavanaugh wrote, unfortunately went the wrong way against my client last term that involves severability, but he said constitutional litigation is not a game of got you against congress where litigants can ride a flaw to take down the constitutional statute. I think what the defenders say is that that language fits squarely, squarely describes the litigation going on here, that really the challenge to the mandate which doesnt mean much is just being used as anni excu to take down the rest of the statute. It seems to me the challengers may have an uphill argument on that. I guess the thing ill say before opening up to broader discussion is just that this case has evoked a lot of political commentary over the last few years. Played a prominent role in Justice Kavanaughs hearings, its playing a prominent role in the election. I think in the popular discussion of the case or understanding of the case, it seems politically charged and very contentious and thats understandable because of the fact that it does implicate fundamental legislation thats been controversial 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 thats a candidate for resolution on the severability grounds that is not going to turn on the standard partisan alignments and partly for that reason, i think the its a case that even if the court remains at eight justices and we dont know how thats going to play out, its a case that might get decided, be able to get decided any way, so this might be a case that will surprise some people, think its just going to attract the normal political alignment, but of course well have to see. Ill leave it at that. Or thank you. Thanks so much. At this point, anybody else who wants to comment, please do so and just grab the floor. Im not going to call on you. It may well be the can agree on that and make this an easy case. On the other hand, if you try to identify the cases on the docket that try to determine the addition of a new justice, this may be that case. I think its conceivable he may find himself in disagreement. 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 roman that on the severability issue, im not sure that addition of a justice will make much difference. I do think its worth underscoring how different the severability the question is this time arouin back in the da nfib because 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 repeal it that have failed, its quite a different thing to make the argument in a context that we now have, especially given the fact it has zero revenue raising effect. Its hard for me to say that even though i said it back in the day, that the mandate was central and i think that was a pretty good argument back in the day. Its harder to say its central. Theres a little air of survey rallty around the severability issue and there are a lot of different ways to come at this, but its not like federal government, that theyre really acting consistent with that view and like one way to sort of encapsulate this for me is i argued a case last year about the risk payment under the Affordable Care act. That was case where my clients prevailed. The federal government lost. The federal government had since then in the months since that decision written a bunch of very large checks to Health Insurers under the statute and it just seems like if the whole statute is actually void and you know, collapses, youd think that would have come up in the case. You can quibble about whether these incured back in the day. The non severability was positive, but it sure seems like it would be relevant. The fact we got through Main Community health case and you know, the federal government never stood up and said oh, by the way, the whole statute is uninstitutional, it must fall. There are federal agencies right now that are exercising authority under provisions of the Affordable Care act that are unrelated to the mandate. It just seems surreal and maybe its just another way of saying that i think the challengers have a very uphill battle when it comes to making the severability ark. So, if i might jump in, i agree with roman and paul, paul the latter, paul the former, but the, theres an air of the argume argument. It seems propostrouse. Obviously not what the 2017 congress intended. They intended the opposite. For all that, arguing that it is severable, i filed what i think is the only brief amicus brief, arguing that the first question, the question of whether the 2017 Congress Actually enacted a mandate, a requirement for people to puchls aca compliant Health Insurance, that question seems, to me, that apparently, only to e me, and a couple of other people, even easier and more surreal than the severability argument. I think the notion that the 2017 congress and donald trump imposed on 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 ple tility paymes now zero. They knew that was the construction of the statute. The president of the united states, last week in his town hall with george stephanopoulos, said for the 4,000th time, i got rid of the most unpopular thing in obama care and a very unfair thing. The individual mandate. Didnt just say it then. He said it when the bill was introduced. He crowed about a it in the state of the union address, the day he signed the bill. Saying now were overturning the mandate and every one of the members of the republican majorities in both houses agrees and described it that way. Majority leader mcconnell. Said it accounted for something really remarkable. We repeal ed the individual mandate tax so low and middle income families are not forced to purchase something they dont want or cant afford. My point is not simply that their intent is reflected in ree statements governors, its that intent in those statements reflect the only reasonable reading of what the 2017 congress did. It turns the world on its head in reality what everyone knows on its head to suggest that what they did was to create a mandate to purchase insurance, particularly that 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 leadership agreed with in a brief to the Supreme Court. The idea that this congress brazenly enacted a law knowing that the Supreme Court had just called it unconstitutional, like the law prohibiting slavery in the territories in order to rebuke the dred scott decision. Surreal doesnt begin to describe it, paul, is what i think. What is i agree with my fellow panelists. This should be a twoparagraph opinion, unanimous. In my brief, i called it the easiest statutory question the court has ever confronted. And i agree with my panelists, if the views of the Lower Court Judges are any indication, theres a real chance that a majority some justices, perhaps a majority, will hold that the 2017 Congress Imposed a mandate despite the fact that they were all trying to do exactly the opposite and thats how everyone 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 incomprehensivable and i think it will be a mockery of what we teach our students about the law. I say that as someone who thought thit would be a 54 decision. I thought those were close cases. This one should not be on both questions, the first and the second. But on the first, im afraid that i im not sure that that is the view of all of the justices on the court. I hope the pauls are right about the severability part of it. I want to hear what don im just taking notes. Maybe ill be you can talk about whatever you want. One question that is on my mind, how much the current circumstances come into play here. Were in the middle of a pandemic, we have a statue that has been in place for a while, seems to have been working for a year and we have a present who says i dont know how much to put on his statements because they seem to flipflop quite a bit. I want to hear from don to the extent hes willing to give some thoughts. As i said, im mainly taking notes here. Paul smith made the point that Justice Ginsburg passing and the filling of the seat might have an effect. Who knows . Maybe thats true. Nothing has been easy about the Affordable Care act, in my experience, why should this one be easy. On the one hand, our case is just as strong today as it was a week ago. And so im hopeful that at the end of the day the arguments that were putting forward will be as persuasive as roman is predicting they will be. 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 inconsequential case. I stand corrected. I stand corrected. You provoked them. We have a question from mark from ap. Can you hear me . We can. Hi, thanks for doing this session as always. I want to ask a quick can question about whether if a Biden Administration and a Democratic Congress took office and were to set the penalty at a dollar, does the case go away . Thats a great question. I dont 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 if thats the next step in the saga. It seems under the if they did that, then you would be a lot closer to the world in which the chief confronted the had to characterize the provision the first time around. It would still be a tax. Although at that point, maybe he would say, hey, this is just too ridiculous to maintain the illusion that what were doing here is right and this is total pretext. It would make the case harder. I dont know if others i think, marty, your very well done amicus brief has the type th hypothetical of the 1 cent tax. If the tax was set at 1 cent, there would be no case. For that penny, the entire Affordable Care act comes down. Its an absurd idea. California has made the argument that it can be sustained under the taxing power. Congress can give people a choice of two things if they could require one of them and here the choice is maintain Health Insurance or write a check or zero or do nothing. Those are things that congress can do outside the taxing power. Congress can repeal a tax. Thats effectively what its done here at least temporarily, appeal a tax. I think, mark, your hypo shows the absurd y of the first argument. The question is the statute as it stands and the statute as it stands was enacted in 2010. And clear language that is most naturally read as the chief justice said to create a mandate. The only way he read it the other way because he thought it was a tax because it raised revenue. I dont think its obvious once you get rid of the revenueraising part of the tax it collapses back into a mandate. If the current version of the statute had been the one on the books in 2010, i think 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 obstruction the court had given it. The only reason they didnt reel it was an internal rule that didnt allow them to do so in reconciliation. And 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. Its still a choice. But it interpreted that way in part because they had a revenueraising aspect to them that made it look like a real tax. Now its not a real tax, its a fake tax we can disagree on the merits of this issue it speaks for itself. Its not easy. Anyway. I joyed your brief, marty. Well done. Thank you. It is meant to be enjoyed. Anybody else on just the question that mark had . Do we have any other questions . Mark sherman, ap. I thought we just had mark. That was we just did. Wait. Im sorry. Forgive me. Susanna politicpolitico. I believe he says the mandate, the coverage guarantees and the subsidies are all tied together. Do you see a specific threat to title 1 including ive heard speculation that the coverage protections might be the most at risk in this case. What about what does that do to the subsidies and do you see all of basically the exchanges kind of imploding as a potential outcome . I will leave it to others who know more about the intricacies. But the baseline answer, i think thats the kind of severability question which is whether weve been talking about essentially, you know, if the challengers win on their severability argument, that means that Everything Else goes down. I think that would it would apply to the entire 2000page law. Thats why it feels like a bit of an uphill argument. If i could follow up on that. This is a good way to illustrate the difference between the severability argument this time around and last time around because last time around when you were working at this organic statute that was all passed at the same time and it had a mandate that was a real mandate enforced by penalties and you had a bunch of people saying you really need a mandate and a real mandate enforced by penalties because weve seen in other states, like massachusetts, whatever ones, it was a while ago, weve seen states that have passed guaranteed issue and the like without a mandate and it hasnt worked. There was a people spiral or whatever it was. That was a pretty good argument. Got four justices vote back in the day. Its a different argument to 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 the statute to have guaranteed issue without an individual mandate when congress itself has turned the individual mandate into kind of a nonmandate by attaching a zero tax. So it just youre right in the sense that the severability argument sort of when i was making this argument back in the day, it reminded me of that, you know, old thing about, you know, the hand bone is connected to the wrist bone, connected to the arm bone. You have this process where the statute is kind of the way you make the argument is to say, look, guaranteed issue doesnt work without the individual mandate and another feature of the statute doesnt work without guaranteed issue and pretty much if they couldnt have those core features in the statute, congressional would have wanted the whole thing. Like i said, i think that was a good argument back in the day. To make that argument in the context where congress after it was done with its 2017 work left the whole statute in place with a zero tax mandate, thats 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 title. Anyone else want to comment on this issue, i think its about whether the subsidies are at risk . Okay. Next press question. No pending questions. Okay. So we then move next up is paul clement. And he has fulton versus city of philadelphia. Im going to talk about this case. I think its a potentially important case. But i think i can cover it relatively quickly. So this the a case with two potentially really important issues in the religious liberty a. But i also think a lot of potential for the court to decide the case without really definitively deciding either of those bigticket 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 which are nonreligious. The way the Program Works in essence, as i understand it, is that 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 its the city of philadelphia. It faces a lot of challenges. There are a number of children in the city that need are in need of foster care placement. And so what these organizations do is they provide a they go through whatever screening, they go through and do home visits and come up with essentially lists of available foster care families. And there are dozens of groups that participate in this and, you know, some of them are religious, some of them are nonreligious. One of the religious groups that has participated in the program for literally decades is the local Catholic Social Services organization thats part of the archdioceses of philadelphia. Probably wouldnt surprise, you know, anybody who kind of understands catholic doctrine that the archdiocese, Catholic Social Services has a doctrinal issue with certifying parents to act as foster families if theyre in a samesex marriage relationship. The position that the archdiocese is taking is that they will essentially certify family if they are a traditional kind of male female married couple. They will certify families if they are singleparent households. I believe their position is that they will certify singleparent households even if, you know, one of those Single Parents is gay or lesbian. But when it comes to a married couple that presents themselves as a samesex married couple, thats not something that is consistent with catholic doctrine. The archdiocese can essentially sanction or certify. That doesnt necessarily mean that those couples are out of luck if they want to participate in the Foster Care Program in the city of philadelphia because there are these some two dozen other organizations that they can go and get certified through those other organizations and they participate through this other organization rather than the Catholic Social Services. Probably because of, you know, that phenomenon that there are alternative ways for a samesex couple to get certified and participate in the program, this was not a case where this is not a case that kind of like the famous case at the colorado baker, this was not a case where, you know, this case started with, you know, a family complaining that they couldnt participate in the Foster Care Program because the Catholic Social Services wouldnt certify them. This is a case where, you know it started and i suppose the press will feel good about this. This case started with a philadelphia enquirer story that said, hey, the Catholic Social Services has this position and they wont certify samesex couples and that created some pressure on the city of philadelphia government to sort of do something about that. And they eventually took action against Catholic Social Services and said we have city antidiscrimination policies that say if youre a city contractor, you cant discriminate on the basis of Sexual Orientation. You are discriminating on the basis of Sexual Orientation. Now that we know, were going to force you to a choice of either agreeing to our nondiscrimination language or discontinuing your participation in our program. Thats the case that i think is just the essence of the case that gets litigated. And the two big issues that are potentially up for the courts decision, the one that is obvious just from the facts of the case is what happens when you have a conflict between a nondiscriminati nondiscrimination principle under state or federal law and a religious liberty claim. Nobody here doubts or is challenging the sincerity beliefs of the archdiocese. They say we have especially a free exercise right to our beliefs. But, you know, the citys also saying, well, okay, but if you want to participate in our program, you have to participate in our program subject to our conditions that are neutral and general generally applicable laws that apply to all applicants. So you cant say you want to participate but not subject to our conditions. That conflict between a state nondiscrimination law and a free exercise claim was, you know, at the core of cases that the court had previously involving the colorado baker and they essentially found a way to work around them and not give a definitive resolution of that issue, but that issue is once again sort of front and center. And thats obviously a huge Justice Gorsuchs opinion to know that that issue is kind of lurking behind the scenes and is an issue that the court will have to resolve one of these days one way or the other. The second big issue in the case is whether the court should overall a decision written for the court by Justice Scalia called smith. The smith decision says that if you have a state law that is general and neutral, law of general applicability, that that kind of state law essentially doesnt trigger heightened scrutiny under the free exercise clause. So, you know, if im somebody who says as part of my religion i want to use the ceremonial use of payote and theres a state law that says its a schedule 1 substance and unlawful to possess, theres a conflict between my religious exercise and a state law that is applicable to everyone. The court in smith said those kind of laws, even though they may burden your religious exercise are generally going to be constitutional. And the Third Circuit in upholding the citys practice, at least at the pi stage, relied heavily on smith. One of the questions presented in the petition is whether the court should overrule the smith decision. Thats something that three or four justices had indicated an interest in, in a concurrence in the dissent of a case 18 months ago. The issue is teed up and theres a potential that the court could overrule the smith decision which would be a very big deal. And if the court were to overrule smith, i think that this would case would really be almost the capstone on the three religious cases from last term and would continue to kind of really cement the current courts kind of vindication of the free exercise clause and really elevating that over concerns about establishment of religion and the rest. Obviously if the court confronts this really kind of central issue about what to do with the conflict between state antidiscrimination law and federal free exercise claims, that would be a huge deal. But i have to say, my own reading of this case is that there are a lot of offramps for the court if they dont want to decide either of those two issues. There are for smith to apply, the law has to be generally applicable and neutral in its application. Exactly what that means and exactly what makes a law not generally applicable and what makes it neutral is a kind of confusing morass. But any this is not a situation where philadelphia can point to this superobvious, like, city title 7 antidiscrimination provision where theyve applied it neutrally and generally forever. This is the history of this is just more complicated and these are largely contract terms and the government can insert it in certain contrac but not in others. Theres plenty of scope for the court to take an offramp and say, the Third Circuit got it wrong in thinking that smith was fully applicable here. Theres also as in the case of the colorado baker, a lot of, you know, record evidence. I think that if i were the citys lawyer, there are some statements that were made when this was first this issue was first raised that i would wish i would take an eraser to kind of in the vain vein of some of the commissioners. I think there are a lot of offramps here. I think this is an important case. It could be that, you know, if theres a new justice that sort of agrees with, you know, some of the existing justices, say the dissenters in the religious liberty cases in the covid context, you sort of get five justices that really want to move the needle very quickly in this area, you could have the court decide one of these two really important kind of issues that would make this a blockbuster. But i look at this as a case with a surprising number of offramps. Others who would like to comment . Just take the floor. Ill jump in again, if you dont mind. Not at all. I largely agree with pauls description and his predictions that this is again, about four dozen or more amicus briefs about whether smith should be overruled on both sides and i think this is not the right case to do that. Either way, smith is not really relevant. The sgs brief is not at all is entirely about the argument that the either animus or lack of applicability dooms the rule. If they rule against philadelphia, that will be the most likely ground. Its a hard argument to actually make because of the strange posture of the case. Catholic social services is not seeking damages or any retrospective relief, its seeking eligible to be contract on its desired terms Going Forward and now there is a provision in the standard contract that just very clearly and categorically bars discrimination on several different grounds, including, race, ethnicity, Sexual Orientation. Theyve said that were clarifying for the future, none of these contractors can discriminate on these grounds. Full stop, no exceptions. Given that thats the case, its sort of hard to bring in these past statements as in Masterpiece Cake shop or the argument that its not applicable. But those are largely on facts that are unique to the case and about what philadelphia is likely to do Going Forward. On the other hand, if the philadelphia says that even if smith were overruled, the regime that was in place between 1963 and 1990, the one that the folks who are trying to overrule smith are trying to return to, they would still win honored thunder regime. All thats being done here is preventing Catholic Social Services from engaging in a contracting function, instantnoa contracting function, but one that is acting in lieu of the state and performing a state function. Its the Pennsylvania Department of health and Human Services that is delegated its statutory responsible to as paul points out certify whether a family does or does not meet statutory criteria to be able to foster a child. Which is an those are nonreligious, secular standards. And a that decision is appealable to a division of the Pennsylvania Department of health and Human Services. This is as though you have an employee who doesnt want to serve samesex doesnt want to perform functions with respect to samesex couples. Thats fine. You dont have to on your own dime and your own time. But your job is to cover everyone the same. And i think thats a pretty strong argument. When someone is getting millions of dollars as part of a contract to perform a governmental function, the nature of which is to see if certain statutory criteria allow someone else to have a certain legal status, they have to do so on the terms that the government itself would be using whichs which are nondiscriminatory terms. I dont think the question of smith being overruled affects the case either way and i would be shocked if the court reaches that question here. As ive suggested, i think its hard to write the opinion on behalf of Catholic Social Services just in terms of the doctrine. For these justices, its never hard to write a opinion coming out the way they want. And i suspect there will be many justices who are inclined to find a way to rule for Catholic Social Services, even though i think the city ought to win on the facts of the case because i think many of the justices think that philadelphia, even if the constitution didnt compel it, the city ought to have granted a religious exception in these circumstances. It ought to be conciliatory now that samesex marriage has been recognized as constitutionally protected. You see this opinion in other cases. For the next several yooears, t justices are hoping that jurisdictions are somewhat de differential to find win win situations in which the samesex families can be served and not suffer discrimination and not suffer sort of odious discrimination, especially from state potential state actors. But at the same time allow some sort of out, right, for instance, in the pharmacy, for instance, allowing an objecting pharmacist not to distribute a controversial drug, as long as theres another pharmacist to do the same. I think a lot of the justices think that philadelphia ought to be to have found a way to accommodate Catholic Social Services here and will be inclined at least to try to find a way to make that happen even though i think the law is actual points in the other direction. Anyone else . Let me pipe in. Quickly, i agree with marty that the status of the social Service Agency as a contractor ought to be significant in terms of undermining constitutional arguments. On the other hand it seems clear that theres going to be lots of justices looking for a place to start on an enterprise of creating more space for religious liberty claims and faced with antidiscrimination laws of protecting lgbtq people. Weve seen this building up and the urge to get that enterprise going which is all the stronger i think in the wake of which had a such expansion of antidiscrimination protections across the country for gay, lesbian and transgender people. Thats why gorsuch went out of his way saying theres going to be lots of new developments in areas of religious liberty and i would be surprised if giving all of the murky facts here and the rule wasnt clear until after the case got going, five justices couldnt find a way to do a narrow gauge ruling for the social Services Agency not dissimilar from the Masterpiece Cake shop case. Youre on mute. Anyone else on this one . I will just add, if theres waiting for questions. This is one of those cases in which the briefs shifts passing in the night. Catholic social services saying being denied this contract excludes them from the ministry of caring for foster children. And it really doesnt. Philadelphia says, no, it doesnt, you can do all the things youve done for hundreds of years to care for children, even to help foster families, to promote them, to help them do this. You just cant be the one who is on our dime certifying them as satisfying statutory standards. Its not affecting your religious exercise outside the contract. Catholic social Services Says the city of philadelphia has monopolized the field leaving us very little space to do what we might have done in the 19th century, creating orphanages and the like. And that occurs on the general aapplicability question too. The description of the facts and the implications of the contract being denied here, or the conditions being placed on the contract, theres very Little Common ground in the briefs and the court can probably will probably be inclined to lean one way or the other on that. Could i just ask you a general question before we go to the press . As paul said, it would be a huge deal to overrule smith because it would basically say that anybody has a religious objection to any law of general applicability would have a right to an exception from the law. Maybe thats oversimplifying. But i back at the time of smith, almost the entire right side of the court joined Justice Scalias opinion saying setting up this rule that laws of general applicability that are neutral are okay. No exceptions. Almost the entire left side of the court dissented and said there ought to be a presumption that religious objectors get an exception. The right side of the court is the part of the court that has been talking about overruling Justice Scalias opinion. The left side has not said anything about that. Whats happened . Can anybody explain to me whats happened to cause this enormous ship on the right and left side of the court regarding whether religious objectors ought to have a right to exception from generally applicable law . Theres clearly been a change in the perception of who is the victim of generally applicable laws and needs to be protected in their religious liberties since 1990. The perception now given the rise of samesex marriage and some other developments is that its conservative, religious people, christians and jews, but mostly christians who are the victims of a legal culture which is imposing its contrary views on them and making them feel that they are being labeled as b bigots a bigots and discriminators. And so i think that leads to this reversal of roles of who is in favorite of exception and who is not. Anyone else . Yeah, i think theres two other things i dont disagree with what paul said, i think there are two other things that are ingredients in this. One is the establishment clause Juris Prudence looks very different today than when smith was decided. In smith, you still had a pretty robust establishment clause that, you know, invalidated a bunch of state laws. There was a felt need by the whole court to figure out where the play in the joints existed between the free exercise clause and the establishment clause. And so now that i think that the right side of the court has basically prevailed in kind of trimming back the establishment clause, i think, you know, the dynamic that led to smith is a little bit different in light of the changes in the establishment clause Juris Prudence. I think thats at least part of whats going on here. I dont think its a complete explanation. The other thing that has happened of course is, you know, Congress Responded first and youve had a lot of courts applying the heightened scrutiny standard to laws of general applicability in a variety of contexts where those two statutes are applicable and as and i think this point was made on behalf of catholic services, the sky hasnt fallen. A big part of what i think motivated Justice Scalia and smith was that rule was important to come up with an administerable rule that would keep the courts out of a thicket that would be hard for them to administer and i think theres at least an argument that the experience with the cases has proven that you can apply this kind of, you know probably what is best described as intermediate scrutiny. At the same time as this case illustrates, its proven a little harder than maybe Justice Scalia anticipated to administer the smiths test because the lower courts have come up with this Juris Prudence about the what makes a law not wholly general and what makes a lot not wholly neutral and, you know, thats a little more complicated than i think Justice Scalia had in mind and frankly probably a little more convoluted than if Justice Scalia were applying the smith test all along. I think all of those factors are partially explaining whats going on here. One more thought, one other thing i think is going on helping to explain whats happening on the left, a lot of the religious liberty claims, they involve a situation in which somebody theres no happy ending. Somebody is going to lose. Either the religious entity or the person with religious beliefs has to do something that violates their faith or i think in these cases, a third party, often employees in the case of an employer, is going to suffer an adverse consequence as a result of the assertion of the faithbased objection. And i think that has had an effect on the justices on the left and changing the way they do the calculus in terms of the benefits of recognizing a religious liberty claim. But i do think that thats got some explanatory power for justices on the left. I would put together, paul and dons comments to say that the smith the presmith rule, was on its face a form of strict scrutiny, but it was strict in