tv Politics Public Policy Today CSPAN June 25, 2015 1:00pm-3:01pm EDT
workability of the act in the form that it was passed? >> just kennedy, i think they're valued by our interpretation. if that is indeed, what a state thought f a state really would have preferred that -- not to have the state government participate in the implementation of those this act for reasons that your honor identified, the structure of the act that congress put in place and we're advocating for today, fully vindicates that concern. they can decide not to participate, without having any adverse consequences visited upon the citizens of the state. that's why our reading is the pro-federalism reading. it's their reading that seems to me is the anti-federalism reading. that's a powerful reason to reject it. if i could go to the second statutory point which is related to what we're talking about justice kennedy which is section 1321, says that this statute is designed to afford
state flexibility. state flexibility. with it-t would be an other we willen -- or wellen sense of the word because it's the polar opposite of flexibility. the third point seems to me is the notice point. if, indeed, the plan was, as mr. carvin said, every state was bog to establish an exchange for itself, that would cure all the of the massive statutory anomalies and absurdities and possibilities that his reading provides for, if that was really the plan, then the consequence for the states would be in neon lights in the statute. you would want to make absolutely sure that every state got the message. but instead what you have a subclause in section 36-b which is a provision that addresses the eligibility of individual taxpayers for tax purposes. >> this is not the most elegantly drafted statute. it was -- it was pushed through
on expedited procedures and didn't have the kind of consideration by a conference committee, for example, that statutes usually do. what would be so surprising if among its other imperfections there's the imperfection that what the states have to do is not obvious enough? it doesn't strike me as inconceivable. >> so justice scalia, i'm going to answer that question by talking about the legislative process, because i think it is quite relevant and i think it ought to be quite relevant to you, with respect to the question you just asked. the language here in 36-b was not the product of some last-minute deal. it wasn't the product of scrambling at the end. the language that emerged, stat tour -- statutory structure, language in 1311, languages in 1321, was the product of the senate finance
committee markup that went on for weeks and weeks. it was a public -- it was a public hearing. frankly it was covered by c-span. you can go watch it on c-span archives if you want to. you can see coming out of that, a clear understanding was with this staut statutory setup would result in being available in every state. >> there were senators, were there not opposed to having the federal government run the whole thing because they thought that would lead to a single payer system, which some people wanted. and the explanation for this provision is it prevents the federalization of the entire thing. >> no. justice -- >> certainly a plausible explanation. the provision's there. >> mr. carvin has floated that as an explanation and he suggested it was senator ben nelson who required it. there's absolutely no contemporaneous evidence, none whatsoever, that anybody thought that way. the solution to the problem your honor has identified is what congress did by having states
have the option to set up their own exchanges with state by state federal fallbacks rather than national system. senator nelson has made clear, he has stated he had no intention of the kind, no contemporaneous evidence at all that anyone did. what mr. carvin has suggested is that this was the product of some deal to try to get votes, so the act could get passed. what i would suggest to your honor is that there is objective proof that that is not true. the provisions and the act that were negotiated at the end to secure the necessary votes are in title 10 of the act. and if you look in the act, pages 833 to 924, that's title 10, you can see all of the amendments. not a single one has anything to do with the statutory language before the court. >> well, the puzzle that's created by your interpretation is this -- if congress did not want the phrase "established by the state" to mean what that
would normally be taken to mean why did they use that language? why didn't they use other formulations that appear elsewhere in the act? why didn't they say "established under the act "? why didn't they say "established within the state"? why didn't they include a provision saying that an exchange established by hhs is a state exchange when they have a provision in there that does exactly that for the district of columbia and for the territories? it says that they are deemed to be states for purposes of this tax. so, why would they do that? >> of course the provision says -- doesn't say established by the state, with a period after state. it says, established by the state under section 1311. and our position texturally is, and we think this is clearly the better reading of the text that by cross-referencing section 1311 effectively what congress is doing is saying that
exchanges established through whatever mechanism, exchanges set up by states themselves -- >> so you're saying that by cross-references 1311, they really mean 1311 and 1321. >> i do think that. let me walk through why i think that's true. >> that seems to be going in the wrong direction of your case not the right direction. >> no, i think it goes in the right direction if you'll just ride with me, justice -- >> before under the circumstances to that, your answer doesn't explain why "by the state" is in there. why didn't they say established under 1311? >> well, sir, the second point is that wherever this provision appears in the act established by the state under section 1311, it's doing work. the work it's doing is we're saying -- what we're talking about is specific exchange established in the specific state as opposed to general rules for exchanges. if you look at medicaid effort -- the c.h.i.p. provision, work the same way. >> in the state. why isn't that the phrase they used, in the state? >> i suppose they could have.
it works perfectly well this way. if you look at qualified provision, it's clearly with respect to qualified individual provision. it says qualified individual is a person who is located -- who resides in the state that established the exchange. clearly what they are talking about is a geographical reference to the particular state. that's what's going on there. it's going on every time the statute uses that phrase. so, it's doing that work. and that's why it's in there. but now if i could go back to your point, justice kennedy, it says established by the state under section 1311. section 1311-b-1 says each state shall establish an american health benefits exchange for the state. it's not, as mr. carvin said, an urging that states do it. it says, each state shall establish. now, we know that when congress used that language, each state
shall establish it must have been meant something more inclusive than each state government should itself set up the can exchange. we know that congress under the backdrop of the amendment, couldn't impose that requirement, we know that because of section 1321. section 1321 provides the means by which 1311(b)(1) requirement is satisfied. it will be satisfied by a state electing to meet the federal requirements for exchanges or it can be satisfied in the event a state doesn't or tries but comes up short. by hhs stepping in and establishing the exchange. >> when the statute says each state shall establish, it really means the federal government shall establish if the state doesn't establish? >> i think the right -- >> if that were the correct interpretation, you wouldn't need 1321 at all. >> i think the right way to think about this, justice alito, is that what's going on here is that -- the right place to focus, let me put it that way, the right place to focus here is not on the who but on the what. on the thing that gets set up and whether it qualifies as an
exchange established by the state. and these exchanges do qualify. and the reason they qualify is because they fulfill the requirement in section 1311-b-1 that each state shall establish an exchange. and 1321 tells you that. because it says to hhs that when a state hasn't elected to meet the federal requirements, hhs steps in. and what hhs does, is set up the required exchange. is such says exchange, referring to immediately prior to the required exchange, the only exchange required in the act is an exchange under section 1311-b-1. so it has to be that that's -- what hhs is doing under the plain text of the statute is fulfilling the requirement under section 1311-b-1 each state establish an exchange. for that reason we say it qualifies as an exchange established by the state. that's reinforced as justice said earlier, definition, exchange is established under section 1311.
1311 again has 1311-b-1 which says each state shall establish an exchange. it has to be that way. petitioners have conceded, page 22 of their brief, that an exchange that hhs sets up is supposed to be the same exchange. then petitioners say function just like an exchange that the state sets up for itself. >> you're putting a lot of weight on the word "such." such exchange. it seems to me the most unrealistic interpretation of "such" to mean the federal government shall establish a state exchange. rather, it seems to me "such" means an exchange for the state rather than in exchange of the state. how can federal government establish a state exchange? that's gobbledygook, must mean something different. >> it isn't gobbledygook.
go back to something justice scalia asked earlier. if language of 36b were exactly the same as it is now and statute said in 1321 that an exchange set up by hhs shall qualify as an exchange established by the state for 1311, you wouldn't change the language of 36-b one iota and there wouldn't be any doubt in anyone's mind that the -- that subsidies were available on federal exchanges. what we're saying is effectively, reading 1311 and 1321 together, that is what the statute does. and that -- certainly that is a reasonable reading of the statute. it is really the only reading of the statute that allows to you be faithful to the text of 1311-1-b and shall and the tenth amendment. >> the word "such" means not just? the exchange that the state was supposed to set up, but it means the state exchange. >> it means an exchange that qualifies as satisfied -- as an
exchange established by the state because it saefz the requirement of 1311-b-1. >> no you don't have to say it says it means this state exchange. your case hinges on the fact that a federal exchange is a state exchange for purposes -- >> it hinges on it qualifying as the state exchange or being equivalent to the state exchange for purposes of the operation of the statute. that is a reasonable reading of the particular textual provisions. once you conclude it's a reading of the particular textual provisions read it the way it is read. only way to make sense of the statute as a whole, only way to bring it into harmony with quality act's individual, what they admit is an absurdity under their reading of the law. >> would you agree that there are -- that there are provisions of the act where the exact same phrase, "established bit state" has to be read to mean established by the state and not by hhs? there are some provisions like
that. >> they've pointed out some but i think they're wrong about each one. >> well, let's take one. i'd be interested in your answer to it. 42 usc section 1396-w-3-h-1-d which says each state shall establish procedures to ensure that an exchange established by the state is a secure electronic interface. and they say that if that read is -- if exchange established by the state there is read to mean an hhs exchange, that means that the state in which that exchange is established is responsible for making sure that the federal exchange has a secure electronic interface. >> they're just wrong about that. just completely wrong. the statute says the state -- first of all, the state is dedicated to state medicaid and c.h.i.p. agencies. what it says is they have establish procedures to ensure coordination. hhs has issued regulations setting forth what that statutory requires in those circumstances.
every state where there's a federally facilitated exchange has met the requirements and fulfilled them and it works perfectly fine. there's no anomaly there at all. >> the state -- >> it met the requirements of the regulation, you say, but do the regulations track the statute? >> yes they do. >> do they give the state authority to say whether or not these conditions have been met? >> the requirements are imposed on the state medicaid and c.h.i.p. and the relationship. that's what the statute does. regulations implement that statutory requirement and it's satisfied in every state. of course, as your honor reading it to me said, it does say -- it proves our point, it says each state shall. it doesn't say states that have set up exchanges for themselves shall. it says, each state shall. it presupposes that there's going to be something that qualifies as an exchange established bit state in every state. so, there's no anomaly there. if your honor wants to ask me about any of the other ones, you can, but there are no anomalies.
>> iveng think, as i understand your answer to be, there are federal regulations telling the states what they have to do here and they've all done it. the fact remains that the state has some obligation under the regulations to make sure that there's a proper interface with the federal exchange. >> on the state side of the interface, yes. but that's the c.h.i.p. and medicaid agencies. those are state government agencies and it's their side of the interface that the statute governs. as i gtsdz i don't think there are anomalies with our readings, but if there are, they pale in comparison to the anomalies on the other side. i really want to focus on this point about the qualified health plan and the qualified individual because the statute is quite clear in section 1311 that an exchange not an exchange established by the state, but an exchange, can only sell a qualified health plan. it is forbidden from selling a health plan that is not a qualified health plan. that's not an exchange established by the state. it's an exchange. the statute also says to certify
a plan as qualified, exchange has to decide if it's in the interest of the qualified individuals. qualified individuals are the persons that reside in the state in which the exchange was established. if you read it the way mr. mr. mr. carvin reads it instead of the way we read it there are no qualified individuals. therefore, the exchange cannot certify qualified health plan as being in the interest of qualified individuals because there aren't any. so, there aren't any qualified health plans that can lawfully be sold on the exchange. >> what is the provision that says only a qualified individual can enroll in the plan under an exchange? >> so, let me -- the -- i will address, that but i just want to make clear the provision i'm talking about with respect to the prohibition on selling a qualified health plan to anybody -- on anything other than a qualified health plan on
an exchange is 1311-d-2-b, which is at page 8-a, appendix of our brief. absolutely unambiguous an exchange, not an exchange established by the state, an exchange may not make available any health plan that's not a qualified health plan. >> qualified health plan. what's the provision you're referring to when you said that. an exchange may only enroll a qualified individual? >> what the statute says throughout is that qualified individuals are eligible to purchase on exchanges. and it's the necessary meaning of that phrase, that if you are not a qualified individual, then you are not eligible to purchase health care on an exchange because otherwise the word "qualified" would not have any meaning. the whole -- the meaning of the word "qualified" is distinguished between people who are eligible and ineligible. as a policy matter, it wouldn't make any sense because think of the people who are not qualified individuals. the people that don't live in the state. people in prison and they're
unlawfully documented aliens. >> part of section 1312 a person qualified to purchase on an exchange must, quote, reside in the state that established the exchange. >> right. there are no such people in 34 states under mr. carvin's theory of the statute. it just doesn't -- you've just run into a textual brick wall. >> i understand your argument that it's a logical inference from a number of inferences that only a qualified individual may purchase the policy. i gather there is no provision you can point to that says that directly. >> that's what qualified means, justice alito. it means that -- you know f you're not qualified, you're unqualified. that's what it means. you're just reading the word qualified out of a statute, if you read it that way. >> qualified used in the lay sense of the term, not a technical term here? >> well, i -- given the way it's defined, it's defined as a person who resides in the state. it excludes people out of state. it does that because the statute was quite clear that you weren't going to be allowed to shop for insurance policies across state
lines because that would infringe on state prerogatives on insurance with respect to prisoners, doesn't make any sense to say prisoners should be able to get insurance. mr. carvin says yes, it does, because they get out of prison. there's a specific statutory provision that says when you face life circumstance, such as getting out of prison you can sign up for insurance at that point. he makes the point about unlawfully present persons being both unqualified and not being able to be covered. but that's not -- that's not surplus. that's there for a very important reason, which is that someone can be in lawful status and, therefore, be eligible for health care but then lose lawful stats us. at that point they can no longer be covered. just none of that works for them. none of that works for them. but to really get to the fundamental point here that both at the level of text you have clear unresolvable context, if you read it mr. carvin's way at the level of text -- >> is that a synonym more
ambiguitity? >> i think so, exactly right justice scalia -- excuse me, justice kennedy. you have ambiguity there precisely because you have -- this is a statute that's going to operate one way or the other. the question is how it's going to operate. and when you read it their way -- >> if it's ambiguous we think about chevron. but it seems to me a drastic step for us to say that the department of internal revenue and its director can make this call one way or the other when there are, what billions of dollars of subsidies involved a year, millions? >> >> billions of dollars of subsidies involved here. two points about that. >> it seems to me our cases say that if the internal revenue service is going to allow deductions, they have to be very, very clear.
it seems to me a little odd that the director of internal revenue didn't identify this problem f it's ambiguous, and advise congress at once. >> a few points about that with respect to chevron deference. we do think chevron did he have republicans clearly supports the government here and i'll explain why. before you get to that, you can resolve and should resolve this statute and statutes meaning in our favor, even without resort to chevron deference, that's what cannon of reading statute as a whole to make it work harmoniously direct you to do very important principles of federals we've been directing you to direct them to do, director of stuctional avoidance direct you to do. now, with respect to chevron, section 36-b-g of the statute expressly delegates to the irs the specific authority to make any decisions necessary to implement section 36-b. so you don't have any ambiguity, congress said irs should do this.
it is a big question. but as the courts said in city of arlington two terms ago, chevron applies to big questions as well as small. your honor raised this point about the need for clarity in tax deduction, irs in statutory reading of tax deductions, a learned treatise that describes that as a false notion. it's certainly not consistent with this court's unanimous decision in may two terms ago that chevron applies to the tax code like anything else. >> if you're right about chevron, that would indicate that a subsequent administration could change that interpretation? >> i think a subsequent administration would need a very strong case under step two of the chevron analysis, that that was a reasonable judgment in view of the disruptive consequences. i think you can resolve and should resolve this case because the statute really has to be read when taken as a whole to adopt the government's position. >> if there are any tax
attorneys in the courtroom today, they probably wrote down what you just said. when we get future tax cases united states will argue we should not read them to -- there should be no presumption a tax credit is provided by that statute. >> you should read it according to its terms. when you read this provision according to its terms and reit it in context, against background of the principles of federalism, you have to affirm the government's interpretation. thank you. >> thank you, general. four minutes, mr. carvin. >> thank you, mr. chief justice. very quickly on standing mr. hurst would be subject to a penalty absent relief from this court 2014 as discussed both he and miss levy would face the same principle for 2015 if the government suggests their cases are moot because of changed circumstances under cardinal chemical 508-s-iii. it's their burden to raise it. not ours, in terms of supplement
supplementing the record. in terms of the anomaly, losing, 34 states losing their medicate funds, the general greatly distorted the statute. it says a state shall establish procedures so the notion that hhs establish them is obviously contrary to that. it says the state will identify people to enroll on their exchanges. well they can't enroll anybody on their exchanges if there are no such exchanges in the state. therefore, by the plain language, if you adopt the notion that's established bit state means established by hhs, all of them need to lose their medicaid funding. >> could i follow up on something the general ended with which -- and justice kennedy referred to, which is the need to read subsidies limited. but so is -- in a limited way. but so is the need to ensure that exemptions from tax
liability are read in a limited way. under your reading, we're giving more exemptions to employers not to provide insurance, more exemptions to states and others or to individuals. how does that work? you've got two competing -- >> no. you do get more exemptions from employers under our reading, some applies. is it unambiguous. it's undisputed that's unambiguous. the dispute here is whether or not if they win under ambiguity and they don't because the cannon requires unambiguous statutes not to afford the tax credit. in terms of the employer mandate, i think that's very helpful in terms of just kennedy's concern about federalism. under their view of the statute, the federal government gets to unilaterally impose on states -- there's an amicus from indiana describing this -- a requirement that states insure their own individuals. it applies the employer mandate
to state. under their theory the states are absolutely helpless to stop this federal intervention into their most basic personnel practices whereas under our theory, they are able to say, no. so actually the more intrusive view of the statute is theirs. my short answer is as follows. there's no way to view this statute as more coercive or harmful than the medicaid -- version of medicaid that was approved by this court in nifb and the nifb dissenting opinion pointed to this opinion as acceptable noncoercive alternative. in all of that even if constitutional -- novel constitutional question as justice scalia pointed out no alternative reading of the statute that avoids that because either way you're intruding on state sovereignty. in terms of anomaly, in terms of qualified individuals, as predicted, soliser to general
did not come up here and tell you. yes, if we prevail here under this theory they have to empty out hhs exchanges. nor did he even respond to my argument that with respect to an exchange under the definitional section only applies to state exchanges, so i think we can view this as -- as a complete tandencuous litigation and not statutory interpretation. in terms of qualified health plan he discussed with you, justice alito, the complete answer to that is that is on 1311. 1311 only is talking about state established exchanges. it has no application to hhs exchanges, therefore, can't possibly create an anomaly with respect to hhs exchanges. >> thank you, counsel. case is submitted. >> the oral argument in the king v. burwell case about three months ago, we're live outside the court where the court ruled today 6-3 in favor of the administration saying, yes, indeed, those subsidies do apply
to states that use the some three dozen states or so that use the federal exchange. not the state-built health exchanges. those subsidies from the federal government. the ruling was 6-3. here on c-span3 we're going to open up our phone lines in just a bit and hear your reaction, your thoughts on today's ruling from the supreme court. and we'll also show you reaction from the president and from capitol hill as well. to join the conversation it's 202-748-8921 for rerns. 202-648-8920 for democrats. all others, 202-648-8922. you can send us a tweet or on facebook. here's what it look the like outside the court when the news was known. >> burwell happening now? >> happening now. oh, my god. it's 6-3. >> did we win?
we're going to get -- >> we win 6-3. [ cheers ] >> >>. [ cheers ] >> aca is here to stay! aca is here to stay! aca is here to stay! aca is here to stay! aca is here to stay! aca is here to stay! >> supporters outside the supreme court this morning when the case result was announced. the ruling 6-3 in favor of the administration supporting those subsidies for those on the federal exchange. here on c-span3, we'll show you in just a bit, more reaction from capitol hill and hear from
you and your reaction as well in just a bit. the ruling was 6-3 with chief justice john roberts ruling in the majority and writing the decision for the majority in that case. and a look at the justices and how they voted. justice roberts, justice soto may other justice ruth bader ginsburg. dissent opinion was justice scalia, justice thomas in the minority as well and justice alito in the 6-3 supreme court decision. your comments and calls coming up shortly. that ruling from the court came a bit after 10:00 eastern at 11:30. president obama accompanied by the vice president spoke to reporters and supporters as well in the rose garden at the white house.
presidential election based in part on preserving or repealing this law, after multiple challenges to this law before the supreme court, the affordable care act is here to stay. this morning the court upheld a critical part of this law. the part that's made it easier for americans to afford health insurance, regardless of where you live. if the partisan challenge to this law had succeeded, millions
of americans would have had thousands of dollars worth of tax credits taken from them. for many, insurance would have become unaffordable again. many would have become uninsured again. ultimately, everyone's premiums could have gone up. america would have gone backwards. and that's not what we do. that's not what america does. we move forward. so today is a victory for hard-working americans all across this country whose lives will continue to become more secure in a changing economy because of this law. if you're a parent, you can keep your kids on your plan until they turn 26. something that has covered millions of young people so far. that's because of this law. if you're a senior or an american with a disability, this law gives you discounts on your prescriptions. something that has saved 9 million americans an average of $1600 so far.
if you're a woman, you can't be charged more than anybody else. even if you've had cancer or your husband had heart disease or just because you're a woman. your insurer has to offer preventive services like mammograms. they can't place annual or lifetime caps on your care because of this law. because of this law and because of today's decision, millions of americans, who i hear from every single day, will continue to receive the tax credits that have given about 8 in 10 people who buy insurance on the new marketplaces the choice of a health care plan that costs less than $100 a month. and when it comes to pre-existing conditions, some day our grandkids will ask us if there was really a time when america discriminated against people who get sick, because that is something this law has ended for good. that affects everybody with health insurance.
not just folks who got insurance through the affordable care act. all of america has protections it didn't have before. as the law's provisions have gradually taken effect more than 16 million uninsured americans have gained coverage so far. nearly 1 in 3 americans, who was uninsured a few years ago, is insured today. the uninsured rate in america is the lowest since we began to keep records. that is something we can all be proud of. meanwhile, the law has helped hold the price of health care to its slowest growth in 50 years. if your family gets insurance through your job, or you're not using the affordable care act, you're still paying about $1800 less per year on average than you would be if we hadn't done anything.
one leading measure, what business owners pay out in wages and salaries, is now finally growing faster than what they spend on health insurance. that hasn't happened in 17 years. that's good for workers. and it's good for the economy. the point is, this is not an abstract thing anymore. this is not a set of political talking points. this is reality. we can see how it is working. this law is working exactly as it's supposed to. in many ways, this law is working better than we expected it to. for all the misinformation campaigns, all the doomsday predictions, all the talk of death panels and job destruction, for all the repeal attempts, this law is now helping tens of millions of americans. and they've told me that it has
changed their lives for the better. i've had moms come up and say, my son was able to see a doctor and get diagnosed and catch a tumor early. and he's alive because of this law. this law's working. and it's going to keep doing just that. five years in, this is no longer about a law. this is not about the affordable care act. as legislation or obamacare, as a political football. this is health care in america. and unlike social security or medicare, a lot of americans still don't know what obamacare is beyond all the political noise in washington. across the country, there remain people who are directly benefiting from the law, but don't even know it. and that's okay.
there's no card that says obamacare when you enroll. but that's by design. for this has never been a government takeover of health care, despite cries to the contrary. this reform remains what it's always been -- a set of fairer rules and tougher protections that have made health care in america more affordable, more attainable and more about you. the consumer. the american people. it's working. and with this case behind us, let's be clear, we've still got work to do to make health care in america even better. we'll keep working to provide consumers with all the tools you need to make informed choices about your care. we'll keep working to use preventive care that avoids bigger problems down the road.
we'll continue working to boost the quality of care in hospitals. bring down costs even lower. make the system work even better. already we've seen reductions, for example, in the number of readmissions to hospitals. that saves our society money. it saves families money. makes people healthier. we're making progress. we're going to keep working to get more people covered. i'm going to work as hard as i can to convince more governors and state legislatures to take advantage of the law, put politics aside and expand medicaid and cover their citizens. we've still got states out there that, for political reasons, are not covering millions of people that they could be covering, despite the fact that the federal government's picking up the tab. so, we've got more work to do.
but what we're not going to do is unravel what is now been woven into the fabric of america. and my greatest hope is that rather than keep refighting battles that have been settled again and again and again, i can work with republicans and democrats to move forward. let's join together. make health care in america even better. three generations ago, we chose to end an era when seniors were left to languish in poverty. we passed social security. and slowly it was woven into the fabric of america and made a difference in the lives of millions of people. two generations ago we chose to end an age when americans in their golden years didn't have the guarantee of health care. medicare was passed. and it helped millions of people.
this generation of americans chose to finish the job. to turn the page on a past when our citizens could be denied coverage just for being sick. to close the books on a history where tens of millions of americans had no hope of finding decent, affordable health care. had to hang their chances on fate. we chose to write a new chapter. we're in a new economy, americans are free to change their jobs or start a business, chase a new idea, raise a family, free from fear. secure in the knowledge that affordable health care is there for us and always will be. and that if we get sick, we're not going to lose our home. that if we get sick, that we're going to be able to still look after our families.
that's when america soars. when we look out for one another. when we take care of each other. when we root for one another's success. when we strive to do better and to be better than the generation that came before us. and try to build something better for generations to come. that's why we do what we do. that's the whole point of public service. so, this was a good day for america. let's get back to work. >> president obama reacting to the 6-3 supreme court decision affirming that the subsidies under the -- under the
affordable health care act for federal exchange are, indeed, legal under that law. the supreme court ruling today announcing that ruling today. we're live here on c-span3. to get your reaction to today's decision and the future of the affordable care act, 202-748-8921 for republicans. 202-748-8922 for democrats. for all others, 202-748-8922. we'll show you the oral argument coming up at 2:00 eastern or so. also looking for your comments on twitter and facebook as well. some twitter comments @cspan is our handle, by the way. one says justice scalia was the justice who read the dissenting opinion. dissent is pure gold. ted cruz was on the floor of the senate. justice scalia he said we should start calling the law scotus care, and i agree. scalia called it scotus care, tweets one viewer, we should
call it right wing frivolous lawsuit care. one says how many times did congress attempt to repeal the aca. the president, in his comments said it was some 50 times or more. let's get to calls. tracy is in holly, michigan, on our democrats line. >> caller: hi. >> hi holly. go ahead. >> caller: i just want to thank them so much. i'm so excited that this didn't go through and we're going to keep it going. i was out of insurance for years and years and years. now i finally got it and the security is in place. so it's great. i'm so happy right now. >> do you take advantage of the federal subsidies, then? >> caller: uh-huh yes. and so do my kids. >> thanks for your call, tracy in michigan. we go to greg next in alabama, republican caller. >> caller: hi, how are you? >> fine, thanks. >> caller: good. i'd just like to say that i am
so angry that i was lied to about all this. the affordable health care act is a good thing not a bad thing. i can keep my grankids on my insurance till i'm 26 years old because of this. and i sure don't like that i was lied to by the republicans about this. and i'm now going to be a democrat. >> it's farmingdale, new york, penny on our democrats line. >> caller: hello? >> hi, penny, you're on the air. >> caller: hi. i'm just so happy that they have affordable health care for -- for everyone because a lot of people have been sick and they haven't had health care. i just think it's a great thing that the president did. that's all have i to say. >> all right. here's mike in merritt island florida, on the others line. >> caller: good afternoon. i listened to the hearing. and it seemed to me the argument
on the structure with the statute and how it was written seemed to be weak. i'm grateful that they upheld it and quite relieved, to tell you the truth. i really don't believe the argument was based on the mandate of the people of the states. i think it was more of a idea idealogical disagreement so therefore, you know, i thought the whole thing was weak on their part. but i'm truly grateful we have health care for all americans. that's my comment. thank you. >> our c-span cameras live outside the supreme court, as they've been all day. coming up at about 2:00 eastern, we'll show you that oral argument once again, about an hour and a half or so, and show you the president's comments, too. some comments on facebook at facebook.com/c-span. lots of posts there. here's one from carol who says that ashamed of the supreme court, only three respected the
constitution. steven says, haters 0, obamacare, 2 supreme court justices decided 6-3. mark activist court. the supreme court is now writing laws and amending existing ones. and may mary says, i personally think the losing side needs to reimburse the american taxpayer for all the money spent to defend the law. we heard comments also more viewers coming up on the phone here on c-span3. we did hear comments from leaders in the house speaker boehner and democratic leader pelosi. quickly, here's a look at what they had to say. >> with today's scotus ruling, you guys were faced with a choice whether to go ahead and use reconciliation to try to appeal the aca. one, do you still intend to do that? b, are you confident that the score of any such plan will -- will not increase the uninsured or -- >> well there's been no decision about how to deal with
the -- or what to use reconciliation for. the problem with obamacare is still fundamentally the same. the law's broken. it's raising costs for american families. it's raising costs for small businesses. and it's just fundamentally broken. and we're going to continue our efforts to do everything we can to put the american people back in charge of their own health care and not the federal government. >> speaker boehner's comments from this morning at his briefing. reaction on capitol hill, bob cusack of the hill tweeting that democrats were in a win-win situation on obamacare -- on the obamacare ruling, and they won. republicans still need to unite behind an alternative. a look at hillary clinton. hillary celebrates supreme court's obamacare ruling. yes, is the one word they had. the one word quote there. democratic leader nancy pelosi was also asked about the ruling today. here's what she had to say.
>> today for the second time the supreme court has upheld the affordable care act. so jubilant about this. it's a victory for common sense and all american families. it's past time the republicans abandon their assault on the new-found health security, the affordable care act is providing. millions and millions of americans across the country. from the majority opinion and i quote, congress passed the affordable care act to improve health insurance markets, not to destroy them. written by the chief. the court's decision ensures that all eligible americans regardless of their home status, had access to premium tax credits to afford the life-saving cures. no pre-existing conditions will prevent them from having care and no lifetime limits, no annual limits, no longer being a woman is a pre-existing condition. all of this intact once again in
this decision. american workers and middle-class families will continue to enjoy the benefits of quality accessible health care and dependable affordable health coverage. it's so appropriate as we go it's so appropriate as we go into the week leading up to the fourth of july that this decision as well as this affordable care act upholds the vows of our founders for life liberty and the pursuit of happiness. a healthier life. the liberty to pursue your happiness without being job locked or policy locked because of a preexisting condition. you can change jobs, you can start a business you can be self-employed. you can reach your aspirations. it's very exciting. >> we will show you oral argument in the king v. burwell case in about three minutes. until then your phone calls. here's gwen in maryland on our
democrats line. gwen, are you there? hello, maryland, one more time. okay. we'll go to marie -- >> hello. >> richmond, texas. hi marie. >> oh, hi sir. i am so happy that the supreme court upheld the law and did not gut this law. i'm a registered nurse. and even i, myself, working at a hospital there's a lot of things i was not aware about this law. for the first time this year when i went i had a scare and i felt a lump on my breast. when i went to see the doctor, i had a mammogram i had a lot of screenings testing that were cost me money in the past. and i wasn't aware of that. i didn't have to pay anything out of pocket because of this law. and also -- >> are you getting subsidies through the federal exchange there, marie?
>> no no, i'm a registered nurse. i have a job. >> yeah yeah. >> but because of the changes in the law, i was still able to get help because a lot of the screening for women now if it's your first year -- the first one for the year is basically free. you don't have to pay anything out of pocket because of the law. >> appreciate your comments. you're seeing some of the people still outside the court. they're talking about some of the protesters there on a case still to be decided by the court that is the same-sex marriage case. to california on our democrats line. it's steve. >> caller: hello. i'm in support of what the supreme court did because i think that they did the right thing because i, myself i'm on the affordable care plan myself. and it's helped me tremendously. because i would have had to pay you know thousands of dollars for my treatment but because i'm on the affordable care act this
has been a blessing to me. and to my family. >> court ruling 6-3 in favor of the administration on those subsidies. our republican line is next. this is debbie in denver colorado. >> caller: hey there. i'm a republican. and i'm pretty angry about -- i feel like the republican leadership is -- they're trying to mislead us about this law. it doesn't effect me personally. but i have so many friends that are so happy with getting subsidies. >> uh-huh. >> >>. >> caller: i have better health care now. and i just feel deceived by them. like they're still -- aren't there some other laws we need to pass, you know, in the senate and in the house? and so i just don't understand why they just keep bringing this
up and up and up and up any way they can. i know why they're doing it. i just don't agree with it. so i did not vote for president obama myself, but i wished i had have. and believe me next time i'm going to be looking at these issues a whole lot closer. >> couple more minutes of your calls. the court actually rulted in two cases today. the affordable care act. they also ruled today federal housing laws can prohibit seemingly neutral practices that harm minorities even without proof of intentional discrimination in that case. the a.p. writes as a major victory for fair housing advocates who say even race neutral policies can have a negative impact on minority groups. the "new york times" in their upshot column where they looked at statistics and figures of all sorts, the headline is the roberts court's surprising move leftward. this term so far shows a greater percentage of liberal decisions since any since 1969.
they write that the court has issued liberal decisions in what the "new york times" called liberal decisions in 54% of the cases which it has announced decisions as of june 22 according to the supreme court database using a widely accepted standard developed by political scientists. if that trend holds true, the final percentage could rival the highest since the era of notably liberal court of the 1950s and '60s led by chief justice earl warren. that's from "new york times." to wyoming, gloria's on the others line. >> caller: hi. >> hi. >> caller: i just wanted to make a comment. i think the supreme court isn't upholding the people of the united states. there were a lot of us that didn't want obamacare and protested it. and i think they're not paying attention to mr. gruber who e-mails have shown had lot closer relationship with the white house and was led on.
and of course he was the one that said, well, they got obamacare passed because americans were too stupid to know what was in it. i have a feeling he was pretty close on the mark. i don't know how many people do know that they may get those on subsidies may get a huge tax surprise come tax time especially if they've made any overtime hours any inheritances, any extra money into their pockets. the government penalizes them for that. and gives them a huge tax bill. as a matter of fact, the other day on c-span there was a gentleman that was saying how bad a tax bill he said he always, you know paid more in or whatever. so he didn't have a tax bill at the end of the year. and he got soft with a great big huge one. and then i wonder how many of those that think they're getting free obamacare because they got medicaid, realize medicaid is
welfare. which means that not only are the taxpayers paying for their own obamacare, now they're also paying extra for the extra welfare that they've put on. so i'm really against obamacare. you know you don't get anything for nothing. and other comment that i had real quick was that a lot of these democrats made a killing in the stock market after the obamacare was put through. so there's a lot of shady dealings and back room deals and stuff that went into it. so it's been just kind of corrupt from the beginning. i really think the supreme court made a mistake. >> thanks for your comments, gloria. let's get a couple more here. this is bob in parkersburg pennsylvania. go ahead. >> caller: yeah. i just wanted to put my two cents into it too. i'm 80 years old, and this is one of the best days of my life. do you understand that? the lady before don't know what
she's talking about. you understand me? and everything i said is true. what's wrong with this country? amen. >> headline in national journal republicans stunned by the supreme court, plot next anti-obamacare moves. is the headline. the gop's plan for the law hinged on judicial win for leverage. now they're turning to another legislative strategy. and pinning their hopes on winning the white house in 2016. by the way, news today that new jersey governor chris christie will be announcing his entry into the race next tuesday, i believe, on the 30th. here's muncie, new york and tommy's on the independent line. >> caller: yeah, hi. thanks for taking my call. >> sure. >> caller: i just have one comment about the affordable care act. i'm retired. i've been long retired. i'm 70 years old.
i've had part a, part b and now i'm on part d through an insurance policy with one of the companies. at any rate, i'm forced to buy part d i have to pay a premium. and when i get my medications, my prescriptions, i have to pay out of pocket. and the total premium that i pay per year and all my out of pocket expenses, any additional expenses i pay out of pocket if i were to take that money and go out on my own and buy my own prescriptions through private sources. >> yeah. >> caller: all legitimate. all here in the united states, i would save $200 a year. but i'm forced that i have to take this insurance. and if i don't take the insurance, i have to pay the premium. i have to pay the penalty. i mean, how fair is that? >> let's get one more view here from brockton massachusetts. ted's on the republican line.
>> caller: good morning. >> hi, ted. go ahead. >> caller: my understanding was part of the supreme court argument was that the states who had their own exchanges could not have federal subsidies. is that correct? >> that was the crux of the case case. is that what you're asking? ask your question again. >> caller: the supreme court said that subsidies were okay on federal exchanges. well, i don't think that was much of a dispute. because that's the way they wrote the law. but they wrote the law. and the debate was about they said the states that did not have state exchanges. >> right. >> caller: but made federal exchanges, would not have subsidies. >> that's right. and they ruled today 6-3 that
those subsidies are allowed to states that don't have their own exchanges that use the federal exchange. >> caller: supreme court as usual ignored english. >> ted appreciate it. your comments more later. and of course tomorrow morning on washington journal beginning at 7:00 eastern. and more reaction from capitol hill. we heard from the leaders in the senate starting with the majority leader mitch mcconnell. >> mr. president, that we're even discussing another obamacare itself inflicted brushes with the brink, yet again, is the latest indictment of a law that's been a rolling disaster for the american people. a rolling disaster for the american people. today's ruling won't change obamacare's multitude of broken promises including the one that resulted in millions, literally millions of americans losing the coverage they had and wanted to keep. today's ruling won't change
obamacare's spectacular flops. spectacular flops from humiliating website debacles to the total collapse of exchanges and states run by the law's loudest cheerleaders. won't change the skyrocketing cost in premiums, deductibles and co-pays that have hit the middle class so hard over the last few years. the politicians who forced obamacare on the american people now have a choice. they can crow about obamacare's latest wobble towards the edge or work with us to address the ongoing negative impact of a 2,000-page law that continues to make life literally miserable -- miserable for so many of the same people it purported to help. >> senate majority leader mitch
mcconnell speaking on the floor shortly after the decision was announced handed down from the supreme court 6-3 in favor of the administration on the obamacare ruling that the federal -- the subsidies do apply to those on the federal exchange. we also heard from the democratic leader in the senate harry reid. >> today this great country of ours, the affordable care act, obamacare, has survived the latest partisan attempt to deny health coverage to working families, millions of working families. won today america won today. the supreme court ruled against republicans seeming to strip 6.5 million americans of the subsidies that enabled them to buy health insurance. american won i repeat. very pure very simple. more than 10 million americans are covered in the exchanges operating across the country. many of them insured for the
first time. 85% of these men and women receive tax credits that help them afford that coverage. but on top of that 12 million more americans now have coverage to the medicaid and children's health insurance programs. the commonwealth fund recently found more than eight in ten adults, that's four-fifths of people who have these programs are satisfied with it. the affordable care act is not perfect. no law is. but this law is working for millions and millions of americans, approaching 20 million americans. once again the affordable care act prevailed. so, mr. president i say respectfully to my senate colleagues, and i mean that, stop banging your heads against the wall in this legislation that passed. it's the law of this nation. stop it. move on. republicans should be really --
they should pause for a minute and look back. mr. president, i don't know the number anymore. i don't know. i lost count of it, is it 75? certainly approaching 100 that actual votes have taken place to repeal the law. never even came close to passing of course, but they've done it time and time again. stop it. think of the time wasted doing that. as einstein said the purest -- the pure definition of insanity is someone who keeps doing the same thing over and over again and gets the same results. i would hope republicans would rethink what they've been up to. their reckless cynical attempts to increase taxes on middle income families that's what it amounted to. i was interested in looking at the paper today at what republicans have suggested to do
if the supreme court ruled against this law. every one of them without exception would be a tremendous blow to the budgeting process in america. this bill makes america money. it's cut the deficit significantly. and that's why i say makes the country money. it allows for more healthy nation. republicans weren't content to jeopardize the health of americans in need of coverage assistance in order to exact revenge against president obama. they were happy trying to do that. so, mr. president, i also think it's important to note that republicans who worked on this
legislation in the process going through the committees here they admitted that the legislation drafters never discussed withholding subsidies in a manner with the plaintiffs. republicans said that. so mr. president i think the public has basically had it with republicans trying to take away a law that protects them from insurance company discrimination when they get sick or hurt. enough is enough. i had a welcome to washington. i had them every thursday. i had a group of people there from nevada who have family members who suffer from cystic fibrosis. they were able to tell me that for the first time in the lives of their children they could not be denied insurance. they're adults now. they can't be denied insurance coverage because of this law. had this been repealed people with cystic fibrosis and many other diseases would not be able
to get health insurance. so mr. president, let's move onto other topics. stop this. stop wasting the time of the american people by trying to repeal the law. i appreciate the work done in the supreme court. 6-3 decision it was a good decision, a strong decision. but upheld the law. enough's enough. let's move on. >> senate democratic leader harry reid on today's 6-3 supreme court decision upholding the federal subsidies for those on the federal exchange. "the washington post" asked the question though about what happens now in states that were setting up their own exchanges? amber phillips writes that the court decided to keep obamacare's federal subsidies in place sparing millions of residents in the 37 states that use healthcare.gov from using subsidies that help make health insurance affordable. but had the court decided differently at least four of those states were already developing contingency plans.
it's not clear what happens to those plans now. she writes arkansas delaware, michigan and pennsylvania were in the process of building or considering building their own exchanges. and we heard from tom wolf, the governor of pennsylvania who sent out a statement earlier today in favor of the ruling in his statement said in part that my administration -- this is pennsylvania, will be notifying the federal government that we will be withdrawing our plan to set up a state-base health insurance marketplace in pennsylvania. up next here on c-span3, we're going to show you the entire oral argument from march in the case of king v. burwell. argument this morning in case 14114 king versus burwell. >> mr. chief justice, may i please the court this is a straightforward case where the clear language of the statute dictates the -- >> will you back up? before we get to a question of
statutory construction, as you know each plaintiff -- or at least one plaintiff, has to have a concrete stake in these questions. they can't put them as ideological questions. and we have four plaintiffs. as to two of them there is a declaration stating i am not eligible for health insurance from the government. but there's a question of whether they are eligible for coverage as veterans. >> um yes. one of those is mr. hearst who would have to -- i would refer you to the joint appendix of page 42 where this is the government's recitation of facts where they make it clear mr. hearst would have to spend $750 of his own money because of the irs rule. mr. hearst was a veteran for ten months in 1970. he is not eligible for any veterans service because if you've served such a short
health services -- >> i'll ask the government -- >> and i should point out that the government has never disputed this. >> the court has an obligation to look into it on its own. >> that's true. but of course there has been fact finding by lower courts in an adversarial system. i don't believe court does its own -- >> i don't think it was ever brought up in the lower court. but the two people were veterans. >> if i could make one further point on this, justice ginsburg. even if you were technically eligible which he is not, there is an irs rule 26 cfr 162 cii which says -- with the usual clarity of the irs code making clear that you were only disabled from receiving subsidies if you have actually enrolled in a veterans health services -- >> that's your position too. and then the two women, i think
one of them was going to turn 65 and which would make her medicaid eligible. >> she will turn 65 in late june. she's obviously subject to the individual mandate well in advance of that by virtue of the irs rule. she would have to spend $1800 per year for health insurance -- >> but you said she would turn 65 in june. >> late june. >> so that takes care of 2015. >> no. right now she is obliged under the individual mandate to have insurance. you have to have insurance for nine months of the year. and so as of april 1st she will be subject to the penalty which will be alleviated only by -- >> i'll ask the government if they will review on that. and then i think for the fourth plaintiff there's a question whether she would qualify for a hardship exemption from the individual mandate even if she received the tax credit in
which case the tax credits would be irrelevant. >> that's true. even factual dispute about it because we have such clear standing -- >> yeah but you would have to establish the standing through the standing. if this gets beyond the opening door. >> fair enough your honor. only one plaintiff needs standing and for the reasons i've already articulated -- >> i don't want to detain you on this anymore. but i will ask the government what their position is. >> thank you. returning to the merits, the only provision in the act which either authorizes or limits subsidies says in plain english that the subsidies are only available through an exchange established by the state under 1311 -- >> if your going to elaborate on that, i would appreciate in your
elaboration i've read that. and this statute is like the tax code more than it's like the constitution. there are defined terms. and the words you just used concern a defined term. as i read the definition as the section definitions and it says "the term exchange means, quote an exchange established under 1311, and 1311 says an exchange shall be a government agency et cetera, that is established by a state." those are the definitions. so then you look to 1321. and 1321 says, if a state does not set up that exchange then the federal, quote secretary
shall establish and operate such exchange. so it says the secretary is to establish and operate such exchange. the only kind of exchange to which the act refers. which is in quote an exchange established by a state under 1311. that's the definition. so the statute tells the secretary set up such exchange namely a 1311 state exchange. there's nothing else in this statute. >> correct. >> so that's throughout what they're talking about. so what's the problem? >> as your honor just said it tells the secretary to establish such exchange. >> yes. >> and what 36b turns on is whether the state or the secretary's established -- >> use the same terminology, but it's used 15 times in this statute, namely the terminology
in the definition is an exchange established by a state. that's the phrase. >> well, under 1311 that is the phrase. and if 1311 created -- the definitional section created some ambiguity as to whether hhs was established a 1311 or 1321 exchange that is immaterial because 36b does not say all exchanges get subsidy it says exchanges established by the state not established by hhs under -- >> mr. carvin -- >> -- it eliminates -- >> can i offer you a sort of simple daily life kind of example? which i think is linguistically equivalent to what the sections here say that justice breyer was talking about. so i have three clerks, mr. carvin. their names are will, elizabeth and amanda.
okay. so my first clerk, i say will, i'd like you to write me a memo. and i say, elizabeth, i want you to edit will's memo once he's done. then i say amanda listen if will is too busy to write the memo, i want you to write such memo. now, my question is if will is too busy to write the memo and amanda has to write such memo should elizabeth edit the memo? [ laughter ] >> if you're going to create moneys to will for writing the memo and amanda writes the memo and you say the money will go if will writes the memo then under plain english and common sense, no. when amanda -- >> gosh you run a different shop than i do if that's the way -- because in my chambers if elizabeth did not edit the memo elizabeth would not be performing her function. in other words, there's a
substitute. and i've set up a substitute. and i've given instructions. elizabeth, you write you edit will's memo. but of course if amanda writes the memo the instructions carry over. eli beth knows what she's supposed to do. she's supposed to edit amanda's members too. >> in your chambers you're agnostic, but the key point here is under section 1311 congress was not agnostic as to whether states or hhs established exchange -- >> if i had those clerks had the same clerks and amanda wrote the memo, and i received it. and i said this is a great memo who wrote it? would the answer be it was written by will? because amanda stepped into will's shoes? >> that was my first answer. [ laughter ]
>> he's good. >> i'm going to the second answer which is you are as agnostic between will and amanda, but congress is not as agnostic between state and federal exchange. >> that's a very important point, i think. because what you're saying is that the answer to the question really does depend on context. and it depends on an understanding of the law as a whole and whether they were agnostic. i agree with that. so it's not the simple four or five words because the four or five words in my example it's obvious that elizabeth should edit the memo. it's the whole structure and context of the provision that suggests whether those instructions carry over to the institute substitute, isn't it? >> we implore you to examine these words in the context of the act as a whole because our argument becomes stronger for five reasons. to respond to justice breyer's point. he says such exchange connotes that it's the same person doing
it. but look at the provision on territorial exchanges? it says territories can establish such exchanges. and then it says and shall be treated as a state. >> yes, it does. no, it's not a question of connotation. it is a question of denotation. now, what does that mean? it means that the federal government the secretary is establishing a thing for the state. and what is the thing? the thing what it is establishing for the state is defined as an exchange established by the state. tell that a person from mars who's literal which i usually am not but a literalist i think would have to read it that way. but if you're not a literalist well, at least you could read it that way. now, you want to go into the context, if you want to go into the context at that point it seems to me your argument really
is weaker. >> well -- >> the exchanges fall apart nobody can buy anything on them. you know the arguments. you've read the briefs. there are no customers. employers don't have to pay penalties as long as they use just people from virginia but one maryland person comes -- you know all those argtduments. how does the context support you? >> well, again, under the literalist or nonliteralist termination doesn't suggest that the state has established such exchange -- >> the state -- >> -- if i could finish my answer to justice breyer, you look at a parallel provision where they use precisely the same language and they said and shall be treated as the state. notably omitted from 1311 and it's a basic statutory you interpret the same phrases the same way and it shows congress knew how to create equivalence between nonstate exchanges and exchanges if and when it wanted to.
sorry, justice so totomayor totomayorsotomayor. >> take a breath. [ laughter ] >> i'm a little concerned with how you envision this provision working. you're saying that the hhs exchange can't be for the state so that it's established by the choice of the state. the choice the state had was establish your own exchange or let the federal government establish it for you. that was the choice. if we read it the way you're saying, then we're going to read a statute as intruding on the federal-state relationship because then the states are going to be coerced into establishing their own exchanges. and you're saying, oh, no, they can't be coerced.
but let's go back to whatbreyer was talking about. in those states that their citizens don't receive subsidies, we're going to have a death spiral that this system was created to avoid. states are obligated, insurers are obligated, to make sure that in their states whether they're a part of this program or not, that they have guaranteed coverage, that children are covered until they're 26 and that they base their costs on community ratings. so if they have to do that then costs are going to rise on every insurance, every insurance plan offered in the country in those 34 states. three or six or nine of your states will have tightened their
medicaid eligibility requirements in contravention of the act, so they're taking money by breaking their compacts. they would have to lose all of their medicaid money. tell me how that is not coercive in an unconstitutional way? and if it is coercive in an unconstitutional way, i think it was just last term we said that that is a primary statutory command that we read a statute in a way where we don't impinge on the basic federal-state relationship. >> this court has never suggested outside the very unusual coercion context of the nfib medicaid that funding condition somehow invades a state police power. obviously --
>> we said it last year. >> no, no in bond. there the federal government was taking away a police power, here the federal government's doing the same. you want billions of free federal dollars. that's hardly invading state sovereignty and it's the kind of routine funding condition that this court has upheld countless times. >> let me say that from a standpoint of the dynamics of the federalism it does seem to me that there's something very powerful to the point that if your argument is accepted, the states are being told either create your own exchange or we'll send your insurance market into a death spiral, we'll have people pay mandated taxes which will not get any credit on the subsidies, cost of insurance will be sky high. this is not coercion. it seems to me under your argument perhaps you would prevail and plain words in the statute. there's a serious constitutional problem if we adopt your argument.
>> two points justice kennedy. one is the government never made that argument. number two -- >> sometimes we think of things the government doesn't. >> well, i certainly hope you do in this case. but not on this question. what i'm trying to quite seriously justice kennedy is convey is if this was unconstitutional, then the medicaid statute that this court approved in nfib would be unconstitutional. >> carvin, what were the consequence of unconstitutionality be? very often you have an ambiguous provision, could be interpreted one way or another way. if interpreting it one way is unconstitutional, you interpret it the other way. >> correct. >> but do we have any case which says that when there is a court provision if it is unconstitutional we can rewrite it. is there any case we have that says that? >> no your honor. that was really my point, justice kennedy. think about the consequences when of the medicaid deal as being coercive.
22 states have said no to the medicaid deal. that has created a bizarre ano, ma'am lee-- anomaly in the law. >> i fully understand that. but i think the court and the council for both sides should confront the proposition that your argument raises a serious constitutional question. i'm not sure that the government would agree with that. but it is in the background of how we interpret this statute. it may well be that you're correct to these words and there's nothing we can do. i understand that. >> a, there's no savings to echo justice scalia's point. the point i want to make on the straight up constitutionality, if this is unconstitutional then all of the provisions in the u.s. code that say the states if you do something for no child left behind -- >> i'm quite sure in south carolina versus dole where it
was a matter of funding for the highway congress said if you don't build the highways you have to go 35 miles an hour all over the state. we wouldn't allow that. >> no. well there of course you would be interfering with a basic state prerogative as to establish their limits and the condition is not related to that. here the condition is perfectly related -- >> mr. carvin, there's a -- you will refer to the medicaid example. that's a familiar granted needs to the state. here's the federal money. and here's the conditions take it or leave it. that's one pattern. but this pattern that we have says flexible state you can have your program if you want it. and if you don't, there's a fallback, there's the federal program. that's a typical pattern. you can have a state implementation plan, but state
if you don't your plan there's a federal implementation plan. but i have never seen anything like this where it's if you take what the statute says you can have in 1321, then you get these disastrous consequences. >> that's why this is much less risky a deal for congress. and what distinguishes it from medicaid as the dissenting opinion in nfib pointed out. in medicaid congress is playing all-in take it or leave it. if they turn down the deal then medicaid is completely thwarted. here, if they turn down the subsidy deal they still get the valuable benefits of an exchange. >> what are those benefits? what are the customers that can buy on it? what are the insurers that will sell on it? >> well, three points. one is we know tech chully they thought exchanges without subsidies would work because again they have territorial exchanges but the government concedes no subsidies. >> that's not what you said
previously when you were here last time in this never-ending saga. you said without the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges. and then you said the insurance exchanges cannot operate as intended by congress absent the subsidies. >> that is entirely true. they wouldn't have operated as intended because congress intended all 50 states to take this deal. so -- >> so why create 1326 at all then? obviously they thought that some states wouldn't -- >> well, they thought it was possible. >> it's very possible. because they stop a mechanism for that to happen. >> and then what happens? you still get the exchange. it's not like medicaid where the entire federal program is thwarted. >> no one's going to visit the program if there are no subsidies. because not enough people will
buy the programs to stay in the exchanges. >> that is demonstratively untrue and not reflected anywhere in the legislative history. the legislative history quite clearly contradicts that. many senators got up and said there are very valuable benefits to the exchange, one stop shopping amazon as president obama said. the government came in the last case and told you these two things operate quite independently. we don't need exchanges without subsidies. in contrast there's not a a cent that without subsidies there would be a death spiral -- >> that was the whole purpose that drove this bill. because states had experimented with this. and those that didn't have subsidies or other provisions of the act didn't survive. you said it yourself in the prior case. >> no, the prior case was ability the individual mandate. the government came in and said the individual mandate is
necessary to effect death spirals. no one in the findings in congress or anywhere else suggested that subsidies were available. will subsidies reduce the number of -- >> my problem is the reverse. you're talking about congress hiding borrowing the phrase of one of my colleagues, a huge thing in a mouse trap. okay? because do you really believe that states fully understood that they were not going to get get -- their citizens were not going to get subsidies? what senator said that during the hearing? >> the same amount of senators who said subsidyies were available on hhs exchanges, which is none. they didn't deal with it in the legislative history just as they didn't deal with medicaid because the statute was quite clear. let's talk about in context again, justice sotomayor. the context is the only provisions in the act establishing any limits on the
subsidies is found in 36b. it's not a mouse hole it's the place you'd expect to find it. it's the only place in the act that limits subsidies to purchase -- >> justice ginsburg. >> it's an implementation provision. it tells you how you compute the individual amount. it's not in the body of the legislation where you would expect to find this. >> your honor -- >> what justice kagan just read to you were essential to have this thing work. that's what you told us last time. >> what i told you is this wouldn't work as expected. that's because they thought this deal would work just like the medicaid deal where all 50 states would say yes. >> why would they set up this whole extra thing if they didn't think anybody was going to take it? >> that was my response to
justice sotomayor. that is completely unsorted eded eded eded there's no talk indeed legislative history refutes it. >> mr. carvin we've heard talk about this other case, did you win that other case? [ laughter ] maybe it makes sense you have a different story today? >> i'm really glad your honor said that. and if i could return to context -- >> i'm sorry mr. carvin, please. >> just very briefly justice kagan, very much appreciate it. to respond we've already talked about the context section 1311 is a key part of this context. it says in the strongest possible terms we want states to run these exchanges. if you give unconditional subsidies, then of course there's absolutely no incentive for states to do it and you are fundamentally undermine that distinction statutory purpose whereas if you condition subsidies congress accomplishes both of its goals. widespread subsidies plus state-run exchanges.
in terms of art, again there is language in the statute which says exchanges, exchanges under the act. those phrases naturally encompass both hhs exchanges and state-established exchanges. and yet the solicitor general is coming here to tell you that a rational english speaking person intending to convey subsidies available on hhs exchanges use the phrase exchanges established by the state. he cannot provide to you any rational reason why somebody trying to convey the former would use the latter formulation. >> mr. carvin, why don't you take an extra ten minutes and we'll give you more of a chance to talk. >> okay. >> well then i'll ask a question. [ laughter ] >> well, if you're going to ruin my ten minutes. >> no, i mean, let's go back to this question of where congress put this thing. because putting aside constitutional issues, there's
at least a presumption as we interpret statutes that congress does not need to impose heavy burdens or draconian choices on states unless it says so awfully clearly and here and this goes back to what justice ginsburg was saying, there's really nothing clear about this. i mean this took a year and a half for anybody to even notice this language. and as justice ginsburg said, it's put in not in the place that you would expect it to be put in which is where it says to the state hears the choice you have. it's not even put in where the statutes defines who a qualified individual is or who's entitled to get the subsidies. rather, it comes in in this technical formula that's directed to the department of the treasury saying how much the amount of the subsidy should be. and that seems to be makes no sense from congress's point of view. in terms of our own point of
view in terms of interpreting statutes, that's not the clarity with which we require the government to speak. when it's upsetting federal state regulations like this. >> i must respectfully disagree for three reasons justice kagan. in the first place of course where else would you expect a tax credit except in the tax code? that's where this was. you wouldn't put in 42 u.s. c which has nothing to do with taxes. it's the only place where exchange limitation is placed. you have three audiences here, not just states you have to tell taxpayers what they're entitled to, you have to tell insurance companies when these subsidies are available, and you have states. so you have to put it in 36b. so the argument what you should have done is put half in 36b and half in 1321. which of course would confuse everybody. exchanges period then you'd go to 1321 and say when we said
exchanges in 36b we meant established by the state -- >> if i were a state official and i was trying to decide whether my state should establish an exchange and i wanted to know whether individuals who enrolled in a plan on my possible state-established exchange would get a credit, where would i look? >> exactly. the basic thesis here is these exchanges don't work without subsidies. you've read 1311 you've read 1321. now you're going to go find out where the subsidies are. that's 36b. they're hypothesizing -- >> i think not mr. carvin. i think the place i would look to find out about my choices is in the provision of the statute that talks about my choices. i think the last place i would look is a provision of the statute that talks about, what is it coverage months for purposes of this subsection, which by the way isn't even the right subsection but whatever.
that's where i would look? is in where it talks about what a coverage month is? >> but your honor i've already described the difficulties of putting part of it in 1321 right? because then you create this bizarre tax credit provision which is only half true. and you wouldn't tell taxpayers and insurance companies. so i believe that's the complete answer. the other practical point i'd like to make is they had three years to implement this. no one thought the states were going to have to make a decision overnight. if the irs had done its job every state would have been fully informed of the consequences because presumably they read 36b. and then they would make an intelligence decision well in advance of 2013 deadline. so this bizarre notion that states were somehow unable to read a statute or to read a regulation is simply -- >> i really want to hear what you have to say in your five to
ten minutes. and if you want only if you want, i would be interested in your responses to the government's brief that if you read the words established by the state without reference to the technical definition as you wish, this isn't just about the taxes, employers in virginia don't have to make policy, don't have to give policies, but if they have one maryland worker they do, it means that they never can tighten their medicaid regulations, never. in the 34 states but of course in the others they can. it means there's no qualified person ever to buy anything on an exchange established by the secretary for the state. and they have two or three other anomalies that have nothing to do with taxes. all of which supports their argument that you have to read this phrase technically according to the definition. that's the basic point i tried
to summarize it. do as you wish. i just want you to have five or ten minutes to answer. >> i'm going to clock that. see if you get -- >> the first point i'd like to make is there's no anomaly stemming from our interpretation of 36b. the government agrees with that. their biggest anomaly is this qualified individuals point about how there would be nobody on hhs exchanges. the solicitor general is not going to stand up here and tell you that if we prevail in our interpretation of 36b they would be obliged by the logic of that opinion to empty out hhs exchanges. so we all agree there's no connection between 36b and the qualified individual. that's point one. point two is if you want anomalies, their interpretation of the statute requires 34 states to then to lose all medicaid coverage. why is that? because of the provisions on 64a through 66a of the government's brief. there are various requirements that the state on pain of losing
all of its medicaid funds must coordinate between the state-established exchange, the state agency for chip and state agency for medicaid in terms of secure interface and enrollment. that makes perfect sense of exchange established by the state means what it says. but they think it encompasses hhs exchanges. the state cannot ensure coordination between hhs exchanges and the state agencies. and none of the 34 are doing it today. so under their atech churl reading of the statute, 34 states will suffer the penalty this court found in nfib is unconstitutionally coerced. as to this medicaid maintenance anomaly, the government agrees that the purpose of this provision was to freeze medicaid payments until you had an exchange for subsidies. which makes sense right? you want to coordinate the two. and that's exactly what this provision means under our interpretation. until you have an exchange with
subsidies, the exchange will be frozen. the government says that thing ended on january 1, 2014. that's a figment of their imagination. it's nowhere in the statute. plus which it makes no sense before 2014 the states were powerless to have an exchange with subsidyiessubsidies, right? they couldn't do it. so there was a three-year freeze on medicaid that they were powerless to get out of. after 2014 if they don't want to have their medicaid frozen all they have to do is establish an exchange. so it's a less harsh restriction on states plus which it gives them another incentive in addition to the subsidies to create the state exchange, which is the purpose investigated in 1311. as to, yeah maybe somebody would from another -- if you had an employee that lived in another state maybe you would be subject to the employer mandate. why is that an ano, ma'ammanomaly? congress liked the mandate. of course they wanted to expand it. they also of course never thought it was going to happen.
again, what they thought was going to happen is neighboring states without it because nobody was going to turn down this extraordinarily generous deal. i don't know if my five minutes are up, but that's my response to these anomalies. >> as i understand -- >> if i -- >> wow, you've been talking a long time. >> sorry. >> you have two more sentences. >> even if there were anomalies in these other sections you don't transport them to 36b, which is concededly neither absurd and furthers the purposes of the act just like in utility air because the word pollutants didn't work with one section, you don't spread it like a virus throughout the rest of the act. >> those were two long -- >> if and when there's any litigation. >> i think -- >> oh, that was a long sentence. >> yes. i think i'm right that justice breyer's question about anomalies, which are replete in the act under your interpretation did not talk about what i think is one of the
most glaring ones, which is this qualified individuals thing. but you're essentially setting up a system in which these federal exchanges that there will be no customers. and in fact there will be no products because section 1311 says that the exchange shall make health plans available to qualified individuals. and then the next section says that qualified individuals means an individual who resides in the state that established the exchange. so under your theory if federal exchanges don't qualify as exchanges established by the state, that means federal exchanges have no customers. >> which of course is not the reading that the government's giving to it because they're not going to tell you -- >> well, that's because they don't share your theory. your theory, that's the result. >> no, let me be as clear as i can. if we prevail in this case they are not going to empty out the hhs exchanges because they understand that there are numerous even if established by the state literally in the
qualified provisions. number one defense they will use is it says you have to be a qualified individual with respect to an exchange. as justice breyer pointed out, the statutory definition of exchange is a 1311 exchange. so they're only talking about state exchanges, not these hhs exchanges. and it is in section 1312 which immediately follows 1311 before 1321. number two qualified individual doesn't mean that means you're guaranteed access. it doesn't mean if you're not qualified you're absolutely denied access. we know that from the illegal alien provision which says illegal aliens are neither qualified individuals nor eligible -- >> oh, but look at the prisoner provision. which says prisoners shouldn't be treated as qualified individuals. so under your theory this statute effectively said that prisoners should be able to enroll in federal exchanges? that makes no sense. >> it makes perfect sense to say
the state's got a choice. think about somebody's in prison in february, they're getting out in april. they got to buy insurance under individual mandate. so if you said nobody who's incarcerated can buy insurance, that means they wouldn't be able to buy insurance during the relevant enrollment period. it makes perfect sense to give states the flexibility to say as to those incarcerated principles you can make them available for exchanges, but under illegal aliens we don't want to which is why we are saying they are neither qualified nor eligible. even if justice -- even if you don't find the most pristine logic to be applied to a statute, remember we are interpreting a statute to avoid an absurd result. it's the basic principle of statutory construction that you will give a plausible if not the most persuasive reading to a statute to avoid the result. >> but your interpret the statute generally to make sense as a whole. we look at the whole text. we don't look at four words.
we look at the whole text the particular context, the more general context, try to make everything harmonious with everything else. i think you said even at the very beginning of this argument as we were going back and forth about my hypothetical that of course context matters. and context might make all the difference with respect to what those five words mean. and i think what we're suggesting is that if you look at the entire text it's pretty clear that you ought not to treat those five words in the way you are. >> i've given you the context chul points before, i think the key thing i'd like to say is section 1311. you say the statute must work harmoniously. if you provide subsidies to hhs exchanges, you have essentially gutted section 1311's strong preference for state exchanges. what will happen is precisely what did happen under the irs rule, two-thirds of the states are saying no. we're not going to undertake this thankless task of running
these exchanges with no incentives to do so. so, yes, if what i have here in terms of what the statute means is 36b quite clearly saying exchanges are available only on states. i have 1311 explaining why they limited subsidies to that. and there is no contrary legislative history at all. what do they have? an atextual reading of 36b which they can't explain why anybody would have used those words if they wanted to convey those exchanges a rule completely undermined the purposes of 1311. and no supporting legislative history. so under all the legal materials that this court normally used to discern what statute means we clearly prevail. >> thank you council. >> you'll have extra ten minutes as well. >> thank you, chief justice, may i please the court, let me start
by telling you where we stand on standing and then summaryize what i think are the two key points in this case. now, with respect to standing the question or case controversy question turns on whether any of the four principle implies. that is unambiguous. and they don't because the cannon requires unambiguous principals. >> and under their view of the statute, the federal government gets to unilaterally -- there is a requirement to ensure there is a statute, and under their theory they are helpless to stop this intervention into the basic personnel practices, whereas under our theory they are able to say no and so the most
intrusive view is theirs. and my short answer is as follows, there is any way to view this statutes is more coercive or harmful than the version of medicaid that was approved by this court and the nfib dissenting provision approved this as an alternative. but in all events even if there is a constitutional doubt under a nonconstitutional question as justice scalia pointed out there is noality tushive -- alternative that intrudes on that because of the state anomaly. and the solicit or general did not come up and tell you, if we re -- prevail, we'll to exy out the exchange. and nor did he respond it only applies to state exchanges so i think we can review this as a
litigation and not a complete statutory litigation in terms of the qualified health plan that he discussed with you justice scalia, that is in 1311. 1311 is only talking about state established exchanges and has no establishment to hhs state exchanges and it cannot establish nan anomaly to those exchanges. >> thank you counsel, the case is submitted. >> the question is whether any one of the four has -- is in fact liable for a tax penalty because this is on a motion to dismiss, right? >> that is correct but it does also go to this court's jurisdiction because if none of the floor is liable for a tax penalty for 2014 that isn't the
case or the controversy. none of them is liable. there is no injury. that is the relevant question here with respect to standing. i don't think there is a question about veteran status but i do think that is the relevant question. >> isn't the question before us, as the standing, whether the district court correctly held in the motion to dismiss context that there was standing. that may not be the end of the matter but isn't that is what is before us. >> that may be correct, yes. and you might alternatively think about this as a question of mootness, there was a case of controversy and it didn't come to pass and none of them -- >> and what are you suggesting? should we have a trial here on this issue and find what the facts are? >> no. justice scalia i did not race the standing affirmatively, the court raised it and i'm just letting us know what our position is. >> would you send it back then
to the district court? >> well, no. i guess what i said is that mr. car vin hasn't suggesting there is no plaintiff liable for a tax penalty and i'm inferring one of the petitioners -- >> why wouldn't we represent -- accept a representation by him, if he makes a representation that one of the four was liable in 2014 and is liable or will be liable in 2015? i mean we know one of them won't. >> our saying about that is i'm going to step further than that justice sotomayor, and given there hasn't been -- i'm willing to accept an absence of a representation that there is a case of controversy here. and that is why mr. chief justice, we haven't raised standing but i do think the key question is whether one of the four is liable for a tax penalty. you have to have that to have a
case of controversy. if i could now, let me please turn to the merits and summarize the two key points. we follow directly from the text of the directly applicable and it is the only way to make sense of 36 b. they produce an in coherent statute that doesn't work and second our reading is compelled by the acts structure and reading and design. their reading forces exchanges doomed to fail and makes a mockery of state flexibility and precipitates the death spiral that the death findings that the statute said it was avoiding and revokes the promise of affordable care for millions ever americans. that cannot be the statute that congress intended. >> of course it could be. it may not be the statute they intended but the question is whether it is the statute they
wrote. there are no provisions in the statute that turn out to be ill-considered andil-conceived. >> so it is not the statute they wrote and the reason it is not the statute that they wrote -- i think i want to start if i could, picking up on a variation of the hypothetical justice kagen asked. they throw down the gauntlet about a hypothetical about airports and the state constructs an airport and if the state doesn't and no one would think that the federal government was an airport constructed by the state and if those statutory provisions were joined by a provision that said airplanes can only land at airports constructed by the state and you would conclude that federally constructed airport qualifies as an airport constructed by the state and because otherwise the statute would make no sense and the same exact thing is true. >> there are no statutes that
make no sense. that one -- every statute must make sense and we will twist the words as necessary to make it -- that can't be the rule. >> that isn't the rule. but the read is you don't read statutory provisions in isolation, you read them in context. you read them to ensure that the statute operates as a harmonious rule and you don't read stotttory provisions ineffective. you read them to promote balance. >> you acknowledge that all of what you are saying only applies where there are alternative readings that are reasonable. you pick the one that will do all that it will say. but if it can only reasonably mean one thing, it will continue to mean that one thing even if it has untoward consequences for the rest of the statute no? >> with respect to this statute first, i want to make two points. >> answer me in principal.
is it not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences for the rest of the statute it nonetheless means what it says, is that true or not. >> i think there are a couple of limitations on that principal. the first is if what you have is a situation in which it creates conflict with a statutory extreme then the court has to do its best to harmonize and recognize the provisions. >> well i disagree. we have a single case in which we have said the provision is not ambiguous, it means this thing but the lord that would make a terrible statute. so we'll interpret it to mean something else. >> brown and williamson is a good example of that. the definition of drug and drug delivery device would seem to cover tobacco but when you read it in context and considering the full scope of the regulatory
regime it can't possibly mean that. but let me work through the text here because i do think i can show you it means a reasonable reading of this statutory text that allows you and requires you to affirm the governor's position. >> and before we get too implersed in a number of provisions in this can you respond to a question that was asked dr. mr. car vin's argument. if we adopt the interpretation of this act, is it unconstitutionally coercive? >> here is what i would say about that justicealito i think i'm not prepared to say to the court today it is unconstitutional. it would be my duty to defend the statute and on the authority of new york versus the united states i think we would do so but it is not any doubt it is a novel question and if the court believes it is a serious question -- >> i was going to say does
novel mean difficult? because it does seem to me if the petitioner's argument is correct this is not a racial choice for the state to make and they are being coerced and that you have to invoke the standard of constitutional voidance. >> what i was going to say justice kennedy, to the extent the court believes this is a serious constitutional question and this does rise to the level of something approaching coercion then i think the doct rib of constitutional avoidance becomes a powerful reason to read the statutory text our way because i do think and i do think with respect to the point your honor is making, it is not just a situation in which there is honorous conditions and consequences for state residence -- residents, there is a profound