Yesterdays panel rolled that the health care individual mandate is unconstitutional. The here is the oral argument in its entirety. You may proceed. Thank your honor and may it please the court, i will be sharing my time with mr. Letter from the house of representatives and dividing rebuttal time. To start with the issues raised in the court in the supplemental briefing order, we think the states were clearly injured by the judgment below and are aiming to appeal it. Judge elrod you might want to move the microphone. Mr. Siegel after this up a, all parties agreed this court has appellate jurisdiction. That is because of the continuing enforcing of the Affordable Care act until the court orders not to do so. They now welcome it, and the participation of the states and house of representatives and ensure their will be an ensure there will be an adversarial presentation of the issues in this case. Turning to the other issues in this case, the central feature of this appeal is that when judge engelhardt when you say your standing, the interbeen the intervening states, are you conceding the standing of the plaintiff states . Mr. Siegel no, your honor. Judge engelhardt so you are here in new orleans, telling us that the state of texas does not have the standing to litigate here. Explain that. What is the distinction you see that licenses you with standing here, but not the plaintiff states . Mr. Siegel the judgment below if it were ever to take effect would cost the defendant states hundreds of billions of dollars in federal funds. The state plaintiffs rely on a theory of standing that they have not proved out. They argue that the individual mandate, even though it has been stripped of its alternative tax penalty, is going to cause people to enroll in their medicaid and chip programs, but they have not produced any evidence to support that. That makes this case similar to in cranets decision versus johnson, when this court held mississippi did not have daca directive. Judge engelhardt dont they also cite the cbo report which talks about expenditures they can reasonably expect to incur . Mr. Siegel that report can conclude there is only a small number of people who, even once the alternative tax have been zeroed out, will maintain health care coverage. Judge engelhardt so they only have a little standing . Mr. Siegel no, your honor. They have not proved the final link in their causal chain, which show their individuals in their state who have enrolled in their medicaid and chip programs. It is that link them not proved up. To go back to the courts decision in crane, the record is similar to what this court held that mississippi did not have standing to challenge. That came to this court on a 121 motion to dismiss. We are here on Summary Judgment. The state plaintiffs burden was higher here, and i think the records are very similar. Judge elrod in that case, didnt judge owen write, in her concurrence, that mississippi had not even really had not even really urged its proper standing and that it would be a different case, in my view, more similar to one of the u. S. Supreme court cases, if mississippi had urged it standing . Because sometimes things that have not yet occurred can still give rise to standing. Mr. Siegel that may be the case. But they have the burden of coming forward and identifying and showing there is evidence that we can believe that people, because of a penaltyless mandate, are going to enroll in their programs. Judge elrod we do need to get ck to your client standing, but before we do, could i ask a little bit about the record . You said the record similar in that case. I want to make sure in the crane case. I want to make sure that i understand what you all are calling the Summary Judgment record is. I have this exhibit a, which are all the declarations from all the state, as well as the individual and various people who work at the state making certain declarations. This is in the evidentiary record for Summary Judgment. Correct . Mr. Siegel yes, your honor. Judge elrod was there any motion to strike, or to say that some of these were conclusory, or anything of the sort, that would have evidentiarily really equivalentarily with exhibit a . Mr. Siegel not that im aware of. Judge elrod your client did not argue in the District Court that it was a lack of standing . Mr. Siegel we did make that argument. And was also addressed by the District Court. Judge elrod just an oral argument. It was never pleaded . Mr. Siegel in our response to Summary Judgment we did not raise the standing issue. We did ask the courts to allow we explore further when it said it was considering entering Summary Judgment. And we argued at the hearing. Judge elrod if, as you argue, the record were insufficient to support standing, that would be because this alone is not enough, or because there is some contrary Summary Judgment evidence. But there is no contrary Summary Judgment evidence, is there . Mr. Siegel to be clear, our position is that it is not enough. Judge elrod youre not saying theres a fact issue on the question . Mr. Siegel that is correct your honor. Judge elrod so we dont need to remand for a determining trial on the standing . There is not enough evidence produced that there are not enough people enrolling in their programs because they zeroed out. Judge elrod can we talk about your clients standing a bit more . You believe you have standing because of the judgment that might take effect. But if a declaratory judgment that we are here on might take effect, how might that impact your client . That is not an injunction. It is just a declaratory judgment visavis these parties in a partial Summary Judgment. Mr. Siegel our understanding of that judgment and the former hades understanding is and an injunction in effect. Judge elrod he says it is not an injunction. Mr. Siegel yes and he entered a stay on his ruling pending appeal, and he also concluded that his judgment would harm us. That is one of the necessary factors to enter a stay. We have understood this judgment is binding. With respect to our state. Judge elrod if it were not binding with respect to your states, do you agree you would like standing in this appeal . Mr. Siegel no, your honor. I would want to the scope of the remedy in order to determine if it did impose practical harm. Judge elrod there is no remedy, it is just a declaration. Just standing was just a declaration. How do you have standing . Mr. Siegel if the federal government is not going to structure its Affairs According to that declaratory judgment and is not going to start cutting off our medicaid funds or making other changes, we might not have standing just based on the practical harm. I also believe we suffer legal harm from the judgment below in the forms of consequences. But this party does not need to answer that because all parties agree it has jurisdiction under windsor. If i might with that in terms of merits, as i mentioned, the central feature of this appeal is that when congress adopted the tax act it made the individual mandate unenforceable. That means that the individual mandate no longer requires anyone to do anything. That means it can be upheld as either a precatory provision, similar to those that congress adopts where no one think there is a constitutional problem judge engelhardt what other statutes are out there that use mandatory language like the one here that are now suggestions for Better Living or Something Like that . Out therehe statutes that the citizenry should know that they do not have to really follow . Isnt that your argument, pay no attention, just go forth and do good . This statute should just be ignored, if you so please . Mr. Siegel your honor, there are other provisions in the u. S. Code that include the word shall that are not binding or operative for example, separability clauses include the shall, but courts do not treat them as binding. They are merely interpretive. There also in operative provisions that have no effect currently, like section 5000 a, 2b, which defines the amount of the alternative tax for the 2014 tax year. That is another example where the word shall is used and has no effect. We certainly find ourselves in an unusual situation. The virtue of our position of understanding this is either a precatory clause, but the exercise would allow this board to uphold the individual mandate. It is underscored when able to interpret it to favor constitutionality, the courts have a duty. But you agree that congress could have included a severability clause, which you mentioned a few minutes ago, when it adopted the aca in 2010. So . Dnt it have done it seems it did the opposite where it said it was a amprehensive overhaul and set bunch of factual findings. Couldnt congress have said, by the way, we think these are helpful to the public and if any of them go by the wayside, we would want all of these to continue to apply . Mr. Siegel but the Supreme Court has said that congress silence does not create a presumption of severability. If congress does not include a severability clause, it does not create a presumption. That does bring me to the question here. Cant we talk a little more about the merits . Is a command not a command if the cbo says it is for some people . And indeed, blackstone himself said that people follow the law just to follow the law, because they want to be good citizens. Without regard to whether there is a penalty. Why isnt the command command . Mr. Siegel the court said even though it includes the word shall does not have to be read as a standalone command. Judge elrod right, because it was in conjunction with the tax. Justice also said the most natural reading of the provision was at the command. Tax,u no longer have the why isnt it unconstitutional . Mr. Siegel because it is possible to still understand this as a provision that does not create rights or obligations. Judge elrod but how can it be precatory if the most natural reading of it is a command that does require action by the federal government telling somebody to buy insurance . Mr. Siegel this is an alternative reading available to the court. As i mentioned a moment ago, it is an unusual reading, but we think the better course to chart is the one laid out to adopt this understanding of the individual mandate as either precatory judge elrod it doesnt apply. If this is no longer a tax, then what happens . Mr. Siegel then there are no negative legal consequences for going without health care coverage. Judge elrod violating the law . Mr. Siegel that is what nfib makes clear. You are not violating the law if you do not buy Health Insurance. Nothing bad will happen to them. There are no legal consequences. Judge elrod we are not at liberty to uphold this based on the Commerce Clause or the necessary and improper clause, given there have been five votes in the court against those propositions . Mr. Siegel we think the best way to understand this is as a precatory provision. Judge engelhardt you agreed with that proposition. Mr. Siegel the Commerce Clause necessary andas proper, using the main construct that nfib did. If congress requires an article one power to keep this provision on the books, it can look to the taxing power which still contains references to the number of dependents. It still talks about section g, which means the irs cannot bring criminal prosecutions. It is not generating revenue anymore, but this court rejected the argument that if the lot generates revenue at all times, it be upheld as a taxing power. Judge engelhardt does the 2017 zero, is that permanent absent further action from congress . Or does it have an expiration . To know because it seems like a yes or no question. Judge elrod i am sure you have time to talk about severability. We want to hear about that, too. If you could please answer the question. Mr. Siegel without further action from congress, it will be at zero. On the severability question, the Supreme Court has instructed that the inquiries wanted congressional intent. We think the answer is straightforward. In this case, we know what congress would have done by examining what it did. It rendered the individual mandate unenforceable by zeroing out the only negative legal consequence for going without health care coverage, and at the same time, chose not to repeal the preexisting condition productions or other important reforms made by the Affordable Care act. Congressction, expressed its views that the individual market, and indeed, the entire Affordable Care act, can operate without an enforceable individual mandate. We think that is all the court needs to know to resolve the severability question. Judge engelhardt the opinion seems to be very specific and its language, particularly with regards to the guaranteed issue, Community Rating provision, of course, the individual mandate. I know you have read that, as most people involved in this. But it seems that the language used is pretty heavy when it comes to those provisions being interlocking or intertwining. How do we unravel that in light of the language . Judge engelhardt that mr. Siegel that reflected the view of a 2010 congress. The question is not about what congress thought in 2010 or what the Supreme Court said in 2015. It is what congress did in 2017. And with its actions, congress made the individual mandate unenforceable and chose to leave the rest of the acus provisions. Judge engelhardt but were they in a reconciliation process at that point . Werent they limited in what they could do in regards to the tax bill . Mr. Siegel that doesnt change the analysis here. The relevant thing is that congress made the individual mandate unenforceable. To use a different judge elrod the tax is unenforceable, not the mandate itself. Mr. Siegel there is no difference between the mandate tax and the mandate itself. Judge engelhardt surely were had reached congress from the Supreme Court building that the nfib opinion had been rendered. Surely congress knew that the linchpi as justice the linchn as Justice Roberts had described had been removed . Judge engelhardt mr. Siegel if Congress Drew a different circumstance judge elrod how do we know that some members of congress didnt say this is the Silver Bullet that will undo the aca or obamacare . To vote for this just because we know it is going to bring it to a halt, because we understand the tax issue and it is no longer a tax . Would bel that computing intent to create an unconstitutional law. There were several members who voted for the tax cuts in the job act and came forward and said, we are not repealing the previous protection conditions, we are not repealing the subsidies. That would mean they were misleading the American People. Judge elrod the only way to know what congress intended is what they say through their legislation. And they left in place the mandatory nature of the mandate. Can you help me with that, please . Mr. Siegel your honor, they made the mandate unenforceable by getting rid of the tax. It is clear that congress intended for the two things to be one and the same. The house of representatives responded with several statements, in which speaker ryan said, we are repealing the individual mandate. The faces in the crowd, whether they are friendly or not . Mr. Siegel yes, you can. They have looked to statements of congress. The cbo report told the members of congress there was no practical difference between zeroing out the alternative tax and repealing the individual mandate. Judge engelhardt where are the statements from those who voted the010 saying no worries, individual mandate isnt really a mandate . Even though it says shall, we are voting on this today and citizens, this is an option that you can pay a tax or buy the insurance. Since you are using quotes, and i am not a fan of using quotes from elected officials who say a lot of things for a lot of reasons. I am not a fan of using that to support an opinion in court because, as judge elrod said, we depend on the law expressing the will of the legislature. But where are the statements, since you are bringing up all these statements, where are the statements from 2010 saying, dont worry about the individual mandate, it is actually not something that requires you to buy insurance . Mr. Siegel i dont know where those statements might be, but i would like to say that our point does not rely on the statements of members of congress. All the court has to do is look at the text, see that congress zero doubt the only thing that made the individual mandate enforceable. That is the beginning and the end of the severability. The other things we have pointed to, like the statements from members of congress, like the cbo report, like the failed efforts at repeal, are just supporting pieces for us. This courts analysis can begin and end with the bcja. Judge elrod i have some questions, so why dont we give givehree more minutes and the other side three more minutes . Mr. Siegel yes, your honor. Thank you very much, your honor. That is just one more point i want to make here. Another frame that the Supreme Court has used to determine the severability question is one of functional similarity. This Court Declares the individual mandate unconstitutional and render it unenforceable, but leave the rest of the Affordable Care act in place, it would create a statute that is not just consistent with congress design but would operate the way that congress designed in 2017. For those reasons and other factors we have pointed to hear, including we have pointed to here, including the failed thoses of repeal, are powerful indications that if a remedy is needed here, one that is most consistent with congress is the one that congress did, to declare it enforceable and separate it from the rest of the aca. Judge elrod can we turn back to the stenting of the plaintiff for a moment to the standing of the plaintiff for a moment . One of the states, i think it is missouri, says it has to pay form 0 to send out this to everyone. Why isnt that a tangible cost that would render standing for the state of miss