tv Texas v. United States Health Care Law Oral Argument CSPAN July 9, 2019 10:30pm-12:19am EDT
i met some friends and they were selling drugs. >> sunday night at 8:00 p.m. announcer: next, the oral argument in a case challenging the affordable care act. pacifically, the legality of the individual mandate, which requires all americans to have health insurance. the fifth circuit court of appeals in new orleans heard from lawyers on opposing sides of the case. this is one hour and 45 minutes. >> you may proceed. >> thank you your honor, may it please the court, i will be timeng my eyes with -- my with mr. letter from the house of representatives. he will go first on rebuttal and
i will go last. let us start with the issues raised in the court on the supplement a briefing order. we think the defendants were clearly injured by the judgment and have a standing to appeal it. >> you might want to move the microphone. you're not. >> is this better? i will speak louder. >> thank you. >> after the supplement a briefing, it is clear that all parties agreed this court has appellate jurors diction under ben's are. that is because the federal government is now committed to continue to forcing the informal care act until the court -- enforcing the affordable care act until the court orders are not to do so. .he first legal arm the participation of the states and house of representatives ensures that there will be an adversarial presentation of the issues in this case. turning to the other issues in this case, the central feature of this appeal is that when --
>> >> your standing, the interview being her states -- intervenor states, are you necessarily regarding the plaintiff states. >> nope >> so your hair telling us that the state of texas does not have standing to litigate here. explain that what is the distinct and that licenses you with standing here, but not the plaintiff states? weree judgment below if it to take a fact would cost the states hundreds of billions of dollars in federal funds. the state plaintiffs rely on a theory of standing that they have not moved up. they argued that the individual mandate, even though it has been stripped of its alternative tax penalty, is going to cause people to enroll in their medicaid programs. but they have not produced any evidence to support that suggestion. that makes this case similar to this court's decision in crain
v johnson. what held that mississippi did not have standing to challenge the docket directly. in that had not shown that there were daca recipients. >> don't they also cite the cbo report that talks about the expenditures they can reasonably expect to incur? that report concludes only that there are some small number of people, who even once the alternative tax has been zeroed out, will maintain health care coverage. >> so they only have a little standing? >> they have not proved the final link in the causal chain. to show that there are individuals like that in their states who are enrolling in their medicaid and schip programs. it is that link that they have not proved up. to go back to the first decision the record here similar that ms. help that -- that the court held that mississippi did not have standing. that came to this court on a motion to dismiss.
we are here on a summary judgment. the state plaintiffs burden was hired here. i think the records are similar. >> actually, in that case, did it judge owen wright, in her concurrence, that mississippi even earned its proper standing? and that it would be a different might be more similar to one of the u.s. supreme court cases, if this is if he had urged its standing. sometimes things that have not yet occurred can still give rise to standing. that may be the case, but they have the burden of coming forward and showing that there is evidence that we can believe people, because of a penalty ast mandate are going to -- mandate without penalties, are going to enroll. >> we can get back to your clients standing, before we do, can i ask about the record? you said the record was similar in that case. thent to make sure
crankcase to this case. i want to make sure what you're all calling those summary judgment as. i have this exhibit a, which are all the declarations from all the states as well as the individuals and then various people who work at the states making certain declarations. this is in the evidentiary record for summary judgment, correct? >> yes your honor. >> was there ever any motion to strike, or to say that some of these are conclusory, or anything of the sort that would have evidentiary league coupled .th exhibit a >> not that i'm aware. infects your client did not argue that there was a lack of standing.
in passing and oral argument, it was never pleaded? our response for summary judgment, we did not raise the standing issue. did/did not ask the courts to allow us to argue it further. we argued it the hearing your honor. >> if in fact, as you argue the record were insufficient to support such standing, that would be because this, alone, is not enough, or because there is judgmentrary summary evidence. but there is no contrary summary judgment evidence, is there? >> to be clear, our contention is that it is not enough. >> so you are not saying there is a fact issue on the question. >> that is correct. >> so we do not need to remand for a determined trial on the standing issue. >> in our view the correct.
in our view, there's not enough evidence to demonstrate their enough people enrolling in the medicare program or to program because of the zeroed mandate tax. >> can we talk about standing more? you believe you have standing because of the judgment that might take a fact, but if a declaratory judgment that we are here on would take a fact, how would that impact your client? that is not an injunction, it is just a declaratory judgment, a-a-vis these parties, partial summary judgment. >> judge o'connor's understanding was that it did have an injector effect. >> he said that it was not an injunction several time. >> that's why he issued a save appeal, and as part of his determination -- is judgment concluded that his determination or judgment would harm us. we have under stood as judgment
is binding the united states with respect to our states. >> that it was not binding with respect your state area do you agree that you would like standing in this appeal? >> know for two reasons first i would want to know the scope of there is no to >> remedy. it is just a declaration. standing was just a declaration, how do you have standing? >> and if the federal government is not going to structure its affairs according to that declared tory judgment, and is not going to start cutting off our medicaid funds are making other changes, then we might not have standing, just based on the practical harm. do think we would suffer legal harm in the forms of collateral consequent is. but this court does not need to answer those questions because all parties agree that it has jurisdiction under windsor. if i might, turn to the merits.
the central feature of this appeal is that when congress adopted the tax cuts, it made the in visual mandates unenforceable. that means that the individual mandate no longer requires anyone to do anything. that it can be upheld as either a preparatory provision, similar to those that congress adopts that no one things causes a constitutional problem... are thereher statutes out there that use mandatory language like the one here, that are now justin's for better living or something like that, that use the word, ' precatory'[?] that the citizenry should know that they do not need to really follow. just go forth and do good. this statute should be >>ored if you so choose
there are other provisions in the u.s. code that are not binding or not operative. severability clauses include the word shall, but courts do not treat them as binding there also in operative positions section 5008,e subsection c, too, b, xi, which defined the amount of the alternative tax for this when he 14 taxable year. that uses the word shall and has no effect we find ourselves in an unusual situation. the virtue of our position of understanding this is either a or part of aause tax clause, is that it would allow this court to uphold the [==] whenmandate it will save it from the
unconstitutionality, courts have a duty to adopt that construction. >> but you'll agree that congress could have included a severability clause such as what you mentioned a few minutes ago, when it adopted the aca in 2010, itdn't have done so? seemed they did the opposite, saying it is a comprehended sip overhaul. could congress have said, by the way, we think these provisions are such excellent ideas and helpful to the public, that if any of them go by the wayside, we want all of these, the remainder to continue to apply. >> what the supreme court has said is that where congress is silent on that point it is silent. it does not create a presumption for or against severability. it does bring the severability question here. can we talk more
about the merits? why is a command not a command, if the cbo says it is for some people. indeed, blackstone himself, says that people follow the law just to follow the law, because they want to be good citizens. so with out regard to whether there is a penalty, why is in a command a command? the court said that this provision even though it includes the word shall, does not have to be read as judge elrod: because it was in conjunction with the tax. the chief justice also said that the most natural reading of the provision was as a command. so if you no longer have the tax , why isn't it unconstitutional? mr. siegel: because it is possible to still understand this as a precatory provision that does not create rights or obligations. judge elrod: how can it be
precatory if the most natural reading of it is a command that does require action by the federal government, telling someone to buy insurance. mr. siegel: because your honor, this is alternative reading available to the court. it is in a usual reading. we think that better course for this court to chart is the one laid out by an f id, to adopt this understanding of an individual mandatory as either precatory or judge elrod: it does not apply. this is no longer a tax. -- then what happens? mr. siegel: then there are no legal consequences for going without health care coverage. judge elrod: you're violating the law. mr. siegel: and that's what and if id makes clear. you are not violating the law if you do not buy health insurance. visuals who do not buy health insurance, nothing bad will happen to them. there are no legal consequences. judge elrod: are you saying we are not able -- at liberty to
uphold this based on the commerce clause or the necessary and proper because, given that there have been five votes in the courts against those propositions? mr. siegel: we think the best way to understand this is as a precatory judge elrod: but do you agree? judge engelhardt: i asked if you agree with that proposition. as siegel: it can be upheld a taxing power or as necessary and proper using the necessary constructs that an f iv did. the power to keep this kind of provision on the books, it can look to the taxing power. section 5008 still contains references to the number of dependents. it still has subsection g, which says the irs cannot bring criminal prosecutions. of course, it is not generating revenue anymore. but this court rejected the argument that a law must generate revenue at all times to be held as a taxing power. judge engelhardt: does the 2017
zero in thehange to 5000 be, is that permanent, accident absent further action from congress, or doesn't have an expiration? judge engelhardt: it seems like a yes or no judge elrod: and make sure you have time to talk about severability. we want to talk about that too. mr. siegel: thank you your honor. no. without further action from congress, that amount will be set at zero. question,severability the supreme court has instructed, that the severability inquiry is one of congressional intent. here, we think the answer is straightforward. in this case, we know what congress would have done by examining what it did in the text note tutee cja. it rendered the mandates unenforceable by zeroing out the
only legal consequence for going without health care coverage, and at the same time chose not to appeal the pre-existing protections or other reforms made by the formal care act. and with that action, your honors, converse expressed its views that the individual market , and indeed the entire of oral care act, can't operate without an enforceable individual mandate. we think that that is all this court needs to know to resolve the severability question. judge engelhardt: king versus veryll opinion seems to be specific in its language, particularly with regard to the guaranteed issue, the community rating provision, the individual mandate, and i know you have read that, as have most people involved. but it seems like the language used is pretty heavy when it comes to those provisions being interlocking or intertwining. how do we unravel that in light of the king versus burwell
language? mr. siegel: that reflected the view of the 2010 congress. the question here is not about what congress wanted in 2010, but what the supreme court said in 2015. it is instead what congress did in 2017. with its actions in the text of made theja, congress initial mandate unenforceable, and chose to leave the rest of the aca provisions. judge engelhardt: were they in a reconciliation process at that point? were they limited to what they could do written regard to the tax bill in 2017? mr. siegel: your honor that does not change the analysis here. the relevant thing is that congress made that in visual mandate unenforceable. the act -- the tax unenforceable, not the mandate itself. judge engelhardt: word had reached congress from the supreme court building that the -- decision had
been rendered. surely congress knew that the linchpin that justice roberts described had been adjusted. drew agel: and congress different determination in 2017. judge elrod: how do you know that? how do we know some members of congress did not say aha, this is the silver bullet that is going to undo the aca, or obamacare if you prefer. so we are going to vote for this, just because we know it is going to bring it to a halt. because we understand the tax issue, and it is no longer tax. mr. siegel: your honor, that would be imputing to congress and intent to create an unconstitutional law. memberse were several who voted for the tax and jobs act and said we are not repealing the pre-existing protection conditions, we are not repealing the subsidies. that would mean they were misleading the american public and their constituents when they said those things. judge elrod: the only way to know what congress intended is
what they say through their legislation. and they left, in place, the mandatory nature of the mandate. can you help me with that? mr. siegel: they made the mandate unenforceable getting rid of the tax. and it is clear that congress intended for the two things to be one and the same. the house of representatives replied on page five, several statements from emerson congress including speaker ryan, he said with this tax bill, we are quote, repealing in visual mandate. judge elrod: those faces in the crowd, whether they are friend they are not, can you tell. honor, you yes your can. they supreme court in resolving severability questions has that there was no practical difference between zeroing out that tax and repealing the in visual mandate. judge engelhardt: where are the
statements from those who voted in 2010, saying that, no worries, the individual mandate is not really a mandate. even though it says shall, we are voting on this today, and is anns, you still, this option that you can pay the tax or by the insurance. since you are using quote, and i have to tell you i am not a fan of using quotes or elected officials who say a lot of reasons, to support. i'm not a fan of using that to support an opinion in court. because, as judge elrod said, we depend on the law expressing the will of the legislature. but where are the statements, since you're bringing up all they statements, where the statements from 2010, saying do not worry about the individual mandate, it is actually not something that requires you to buy insurance. ? mr. siegel: i do not know where the stations might be. but our point here does not rely on statements of members of
congress. all you have to do is look at the text of the tc ja and see that congress zeroed out the only thing that made the individual mandate enforceable. and that is the beginning and end of the severability analysis. the other thing we pointed to, the from members of 2017 congress and cbo report, >> the appeal, are supporting pieces for us. this court's analysis can begin and end with the tc ja. maybe over my time, but if i might. judge elrod: you may, but i asked him questions. what it would you three more minutes, and give the other side three more minutes. mr. siegel: thank you your honor. judge elrod: you may be heard. and then i will ask a question. mr. siegel: another point i would like to make. in other frame the supreme court has used to discernment -- determine severability questions is one of functional similarity. mandate the individual
but leave the rest of the affordable care act in place, it would be creating a statute that is not just inconsistent with but one is designed, that is the way congress designed things in 2017. the other contextual factors of imprinting printed to here, including, importantly, the -- factors we at have pointed to hear, including failed efforts at repeal. those are powerful indications that if the remedy is needed here, the one most consistent with congress's intent is to render the individual mandates and declared unenforceable. judge elrod: can we turn back to the standing of the plaintiffs for moment. , one in this declaration of the states, i think missouri, says that it has to pay $50,000 -- the year 2021 to
send out this form, 1095 b to everyone. why isn't that a tangible cost? that would render standing for the state of missouri? mr. siegel: because that cost is imposed not by section 5008, by other provisions judge elrod: . judge elrod: they say they have to do it because of this. there is nothing from the record that says from an irs official or from an expert you have hired , that says it is really because of some other reason. so why wouldn't the summary judgment record control on that point? mr. siegel: respectfully, your 6056 as thend reason they have to issue these the, not section5000a. national federation of the blind in order to bring a
constitutional challenge to a provision, the plaintiffs have to show that they were injured by that provision and then show that that the provision is unlawful and unconstitutional. only then you get the severability analysis. symmetryod: is there a plaintiffs and interveners, legally? mr. siegel: i don't think so your honor. it is clear to us at least that the judgment below it cost us hundreds of billions of dollars in federal funds. our position is that the state plaintiffs have not made out their evidentiary burden to section5000a. judge elrod: if we were in the d.c. circuit judge circuit, would your answer be the same? because they do not have that case. a different standing analysis. mr. siegel: yes, your honor, i think the requirements of article three, and what a party has to share the summary judgment stage. judge engelhardt: who would have standing? mr. siegel: no one would have standing. judge engelhardt: no one will
have standing to contest a mandatory enactment of congress to say a citizen shall do something. no one? it seems we fought a war over that 200 years ago and the king would say you have to do that. mr. siegel: the important distinction here is that it is not backed up with any negative legal consequences. if i do not buy health care coverage next year, i thing bad is going to me. judge elrod: that is your answer for the individual. because we have not talked about the individual. mr. siegel: that is my answer for the end visual plaintiffs that can satisfy the legal obligations by doing nothing. i see i'm over my time but i be happy to answer other questions. judge elrod: i think we will catch you next round. mr. siegel: thank your honors, i appreciate it.
>> may please the court. on the general counsel the house of representatives. because judge engelhardt's questions go to the heart of this case. i would like to address them first. you are saying that we have this mandatory language and therefore the people of the united states would know that there is a mandate. that is not correct. remember, the supreme court said, unequivocally, in an f i isthat there is a choice, it not a mandate. you can either you shall maintain health insurance or you pay this tax that is the definitive interpretation of what the affordable care act means. the supreme court said that, and congress was well of their of that.
and this court obviously is bound by that. everybody in this courtroom and the congress. we are all bound by what the supreme court majority held in the affordable care act case. congress has the authority to take attacks of a certain amount and make it zero. there's no doubt about that. nobody can contest that. congress did that. the choice is still there. the choice that the supreme court said was in the statute. ,t that time, the choice was maintain health insurance, or pay a significant tax. is, maintainw health insurance, or pay -- or there is no tax. there is no penalty. congress, again, is free to do that. absolutely nothing changed what
the supreme court had told all of us is the law. and that is still binding now. shall,now, definitively, in this position does not mean must. whatever it means and other statutes, the supreme court definitively told us that xiao does not mean must. that "shall" rob - does not mean must. chief justice roberts knew what he was writing. 67-568 pages, chief justice roberts spoke about their all sorts of people who will not be subject to the tax. it was in the original statute. is, chiefstion justice roberts says, we would expect congress to be troubled
by the prospect of making all of making all this people outlaws. but nevertheless, chief justice roberts says that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lou of buying health insurance. so the supreme court gave us the answer already. this is tying in with my overall theme. what the plaintiff states are asking here, and what the district court did, is entirely inconsistent with how we know courts are supposed to act. because we know that courts are required to uphold, to give a statutory provision a possible interpretation, if that is constitutional as a put one that is not. severability,der you are directed, you're
instructed, to save everything .ou can, unless it is evident so the burden is on the other. it is evident. that congress would not have meant that. what have preferred no statute. both you and judge englehart are quite correct to say we do not always trust to statements by even the speaker of the house and the senate majority leaders to tell us what something means. but, remember, we do not have to havethat congress would wanted this court to keep that language. the burden is on the others, too sated it is evident. that is a high standard. that congress wanted this entire statute to be struck down. and so the district court.. judge elrod: it does not have to have wanted it to.
it is a hypothetical. had the supreme court said in any number of sit -- severability decisions, that you must uphold. the supreme court said -- the supreme court said in a number of severability decisions, that you must uphold. congress did no what had been aware. nfib. it was congress said we are going to zero out the penalty. you just did something unconstitutional because you left in place the individual mandate but you put the tax at zero. you distance having unconstitutional. but the other way -- but there is another way to read it. the other ways to read what the supreme court said. he said you have not done
anything constant -- unconstitutional. you made the tax zero. everybody agrees congress has the power to do that. that simply means the choice that chief justice roberts made clear to all of us is there. i know texas is unhappy with what chief justice roberts did. they wish he had done something different. but he did. and that is the majority of the supreme court. and that was binding. and that is binding on the district court. judge elrod: if you don't believe that the statute changed . its changes have made that not a possible reading anymore. mr. letter: that is not correct your honor. because the change was some thing congress could do. and it made clear, through this change, that there actually was even less coercion and there was before. again, remember, before, chief
justice roberts said, even coercion, even when faced with his major tax penalty, you still have a choice. isn't that the degree of coercion is an issue. inappropriate. it is not the degree of coercion, it is whether or not is tied to a revenue producing rule. isn't it? mr. letter: no your honor. i do not think that is the question here. judge elrod: that was essential in nfib. mr. letter: withdrawing from that, the supreme court said there was a choice. you either shall maintain health insurance, or you shall pay this tax penalty. and congress has now said, it we do not want there to be any tax penalty, the ones who did speak, we want the american people to continue to have a choice.
we want to make it even easier choice. judge elrod: do you want to address your clients standing? honortter: happy to your the main thing i want to say to you is that under your precedent, you do not have to decide whether we are properly and intervenor here or not. the ruiz case is binding law of this circuit because there is article three jurisdiction. nobody can doubt that underwent sore, it is quite clear. it is quitedsor, clear. i think all the parties agree california it is argued by my this courtleague. does not have to address standing to intervene. what aboutlhardt: justice ginsburg? did she get a ride in the house of delegates case? it is written pretty generally,
and it is a new case. it letter: obviously she got right. she voted with the supreme court majority. so she got it right. you and i both know that. they are, the speaker majority was dealing with a state. judge engelhardt: she put it very generally. when i first saw the opinion in light of this case being on our docket, i was drawn to it. and i thought it was probably written about the virginia house of delegates, about how that states legislative framework is set up. but maybe a little to my surprise, it seems as though the opinion is written in very general terms. remember myand first statement is you do not have to reach this. under ruiz, you do not have to. yes, i think there are one sentence or maybe two frames broadly. the rest of the opinion makes clear that justice ginsburg and
others were talking about the state. judge engelhardt: i guess we can all read and to quote well from it. i do not read it that way at all. to twoing her statements stamens we should overlook is, i did not get that from the opinion at all. connor --: your honor your honor, i cannot do at this moment but i could reach you all the times. in virginia, only the attorney general can litigate for the state. that is not true for the federal government. federal for the government, congress has provided, and this up in court has recognized, all sorts of people can let a get for the united states. key camera, we have
raters. in combination with the child a decision, -- the chada decision. you combine shada with 530 d, the executive must notify both houses of congress. i am one of the peoples it is supposed to notify when it is going to quit. when it is going to let down the american people and not defend the statute like this, even though their obvious leave valid arguments to be made in support of it. if a coequal branch of government says something is unconstitutional, haven't they taken an oath that they will not be trying to uphold
unconstitutional things. unless you believe that judicial supremacy is so vast, that a branch is not even allowed to have its own opinion at all. mr. letter: good point your honor. judge elrod: do you agree or disagree with what i just said? mr. letter: i'm going to agree and point out the justice department has for many many decades had the position that it will defend acts of congress if there is a reasonable defense for them. departmenthe justice , it clearly is a reasonable argument, whether you agree or --agree greedy ultimately the justice department finally said yes, and we wish it were otherwise. have done that. says, and their batch of cases, this circuit, the 10th circuit, where you have
had situations where the house and the senate, or the house alone, has intervened, and defended constitutionality. judge engelhardt: i want to ask you about that. i seems as you're here on behalf of the house, you're speaking on behalf of the house of the 111th congress. 115 congress, and the 116th congress. mr. letter: only the 116th congress your honor. judge engelhardt: we're talking about intent. you have spent a particular amount of time talking about the intent of the 110th congress and even more time talking about the intent of the 115 congress in 2017. should we also question why the senate is not here to talk about intent, the will of congress when necessarily him, the senate, what and it echo why would they not be here to make the organs you're making? your honor, the that we areemember
pointing to the text of what congress passed in 2017. judge engelhardt: you pointed us also to some quotes from members of different parties of congress in 2017. it seems like we are back to the text,hich i'm happy -- which i'm happy here. mr. letter: you should take comfort from the fact that the speaker of the house and senate majority leader agreed on this. but let's just go to the text. the text is, we got rid of the penalty, we put the taxes zero. and we left the entire rest of the statute intact. judge engelhardt: why would not the senate, upon being notified as you suggest, by the executive, why would the senate not also be here to say, this is what we meant when we wrote
this? they are sort of the 800 pound gorilla not in the room. mr. letter: your honor, the senate operates different leaf from the house. i cannot speak for the senate. but it does not -- differently from the house. it does not matter. giving argument. i'm not saying that you should roll this way because it is the position of the house. i am saying, with the proper respect, you must rule this way because the supreme court told what the statute means. and in 2017, the congress said what it meant in the text. and we know what your response bill these are in upholding -- your response abilities are in upholding any statute tort -- statutes that you can, in regard to severability. it has to be evidence that
congress would have preferred to have no statute at all. there is no evidence of that. not a little evidence. there's no evidence of that. i will say the rest of my time. thank you. your honors. >> may please the court, kyle hawkins for the state plaintiffs. as it stands today, the aca presents a standalone command to buy an insurance product that the federal government being suitable -- deems suitable, and it does so without raising a dime of revenue. the text of the aca declares that mandate essential to the
in the goals the congress wanted to achieve. the obama administration thought of that as an in severability clause. correctlyct court synthesized those considerations with the supreme court's holding in nfib and it reached the correct conclusion. the individual mandate is unconstitutional and it is inseparable from the remainder of the law. judge elrod: can you talk about that essential term, because that is also used in reference in thea, and other law statute. here, trying to strike down orisa, are you? saying it is inseparable from arisa? >> no, your honor. the aca includes what amounts to an in severability clause.
mandate, not the penalty, but the mandate is essential for driving people to sign up for health insurance, which is essential for achieving the marketplace reforms that congress wanted. congress wanted universal health insurance and congress declare the mandate essential to achieving that goal. judge engelhardt: there was mention in the brakes about provisions in the aca that statutesriminal relating to health care fraud. is it your position that congress would not have made those changes but for the monolith of the aca? best position is that the evidence of what congress wants to do is in the text. in text includes this severability clause. i think it follows from that that the aca minor and major provisions are all inseparable from that clause. myeed, that is not just
conclusion. every supreme court justice who has looked at this question, has concluded that the in visual is not severable from any other mandate- the individual is not severable from any other portion. nfib reach theat same conclusion. the six justice majority in king v. burwell, discussed the mandate as operating as part of a three legged stool, to use the term of the d.c. circuit judge p judge elrod: what do you say to those who would say that it is absurd to say that it is not severable from a restaurant calorie guideline? what you say to someone who says that? a i would say that i'm not in position to psychoanalyze congress. indeed, the courts are not to engage in analytical tasks. i am not in a position to guess what congress had intended. i am in a position to look at
the text of the statute for the court today if the court were to go back to the law library and pelagic current copy of the u.s. code, as it -- and out a copy of the u.s. code as it stands today. the court would see a command the american people to maintain central coverage and no revenue raising, and in severability clause that this man it is essential. congress had multiple opportunities to excise that in severability clause from the language of the statute. what --oing to look at if we look at what congress people may have wanted, i think we should take into account that judge o'connor's decision has been on the books for seven months, declaring the mandate inseparable from the rest of the law. congress has done nothing about
that. if congress thought that conclusion was wrong, it could've gone back and excised the individual mandate from the law. it could have excise the in severability clause in the law. it has not done any of that. i think that demonstrates that congressional intent is not monolithic. as your honest crackly observed during my calling on the -- as might colleague on the others the best evidence is the text itself. believed that the inseparability clause was no longer appropriate, if it believed that the mandate was no longer necessary to the law, it had a duty to excise that statute from the law or that section from the law. but it did not do that. it is not this court's role to act as a legislature and cut sections out of the statute that congress has had the opportunity to amend but has not done so, simply because the court thinks as my friend on the other sides
suggest, that it can guess what congress people were thinking about. judge elrod: can you comment on justice thomas's opinion in murphy, that we do not have our ase pencils in any regard applied to these parties and we should say we are not going to apply this law? yes your honor, in murphy, we do not have a severability clause or an in severability clause. the issue is whether the professional and amateur sports protection act must be struck down in its entirety including the advertising, notwithstanding ,he constitutional portion states violation of the 10th amendment. thomasent with justices and murphy. here we have an in severability -- clause.
in severability clauses as almost dispositive. we saw that in the medicaid expansion. seven justices on the court medicaiduphold the expansion unconstitutional. they decided to sever that portion from there made her the aca. medicareso because the act contains an in severability clause. if courts treat severability clauses as almost dispositive, they should do the same with in severability clauses. murphy did not speak to that issue as clearly as the affordable care act speaks to the issue of severability before the court today. judge elrod: could you speak to whether or not we should be treating this as an injunction as up to counsel argued? mr. hawkins: we thinks that we
got in the district court, at least effectively. judge elrod: i thought you agreed with them, even though it says this is not granting an injunction, instead granting partial summary judgment on this declaratory judgment. mr. hawkins: right, so in district court, we asked for a nationwide injunction enjoining the enforcement of the aca. and we asked for a declaration that the individual mandate was unconstitutional, and inseparable from the rest of the aca. asked an oral argument about the relief we were seeking we represented we would like a nationwide injunction as well as a declaration. the federal government's position before the district court was that an injunction was not necessary. the government asked the district court not to enter an injunction. they said we do not need one we are going to treat the declaration as though it were an injunction. judge engelhardt: do you agree,
i think on page six and 10 of the latest submission from the government that this relief, the ruling from judge o'connor does not extend beyond the plaintiffs states in this case. do you agree with that? or where would we go if we were to affirm judge o'connor and send the case, assuming it does go higher, if the case went back to judge o'connor, what would he do, what would your spec him to do, if you're seeking injunctive relief, and the federal government is now saying that, well, no worries, this ruling only applies to the plaintiff states. would that be satisfactory? mr. hawkins: your honor, i think it would depend on what the federal government does. judge engelhardt: you have already said that they do not think the ruling applies elsewhere. mr. hawkins: and that is a disappointment to us. we think that is inconsistent to what they represented to mr. o'connor in the strict court. follow the cases claiming its affirmed, they
would have to evaluate if we have been the victim of a date and switch and we might have to go back to district court and seek the injunction we did not get initially. judge elrod: if you are entitled , if the court ruled on the partial summary judgment, and then you have to go back for further the relief, the remedy has not been spoken of yet. that'skins: i think right your honor. that we will go back to district court. whether or not we need to seek injunction, i'm not prepared to make a representation on that today. i think it will depend on what the federal government does going forward. judge elrod: i'm not saying you are entitled to any injunction. but to the extent that you say we thought we already had one or some like that, you are not to .hat process yet it is a partial summary judgment. we are just taking the federal government at their word.
i think now they are briefing a supplemental briefing to suggest it only applies in the 18 plaintiffs states. i do not think that is the message we heard from them in the district court paired will be evaluating options moving forward as to what further really we may need to seek -- for the relief we may need to seek. judge elrod: do you want to address your clients standing? mr. hawkins: yes. first there to be no doubt that this court has article three jurisdiction for the reasons that are calling will represent soon. the plaintiffs have an article three injury. that is enough for this court to proceed to the merits. if i'm wrong about that, it is important to note that the states have standing in their own right because the afford will care act because of the states in classic pocketbook injury. we have evidence in the record including the cbo reports which looked at the mandate and said that this is going to encourage
people, entity because people, to sign up for health insurance. and it will do that, regardless of whether or not there is a penalty attached to it, because people feel a duty to comply with the law, even if there is no penalty attached to it. just a few days ago, all nine justices in the u.s. supreme court agreed that a state has standing to challenge a federal action that might have the predictable effect of causing third parties to act in ways that injure the state. judge engelhardt: do you agree that mr. siegel lines also have standing? mr. hawkins: yes we agree on the basis of our understanding that this courts declaration is meant to apply nationwide and would have the effect of an judge -- and injunction. and that if it were to apply nationwide it with because a classic pocketbook injury to states that would not get funding the aca makes available. judge elrod: the third-party
census issue. notyou address whether or the preening of this form in , $50,000 worth of standing so to speak. , i think thates is an independent basis. judge elrod: they say it is not a.ally pursuant to 5000 mr. hawkins: it is not in the text of that, but it is in the in permitting forms. where they have january through december laid out. as employers we have to go through and check boxes to say which month our employees had health insurance. i think it is fair to say that that is traceable to the individual mandate which requires continuous covered except for short gaps. judge elrod: is there anything in the records that state anything of these requirements, checking off the box, i guess i will ask the individual plaintiffs attorney, checking
the box or setting up these forms, is no longer required, or no longer take place? is there anything in the record that indicates that? mr. hawkins: there's not that where aware of. as far as we know. we have not heard from the irs that they're going to do anything differently for next year's tax forms. we have not seen as yet. we do have evidence in the record that those forms interest. there is nothing in the record that indicates that that is going away in light of the tc j. i think you're on is right that that is an independent basis for our injury. judge elrod: it is a question, not a statement. mr. hawkins: i think that is the basis for injury, as is the cbo report. the aca causes a classic pocketbook and read to the states. and that should be the end of the standing analysis. if the court even gets that far, if it were to have doubts about the individual plaintiffs standing. i would like to dress a few points that the other side has raised in their presentation. first and foremost, i think the other side is seriously
misreading the supreme court decision in nfib. it helps that the initial 5000ae is unlawful, that is best read as a command to buy insurance. and it held that the commands despite being unlawful can only be saved if it is fairly possible to read the law as a tax. finally, the law cannot be read -- if the law cannot be read as a tax than the original holding stands and commands unlawful. i think it is important to understand the structure of chief justice roberts opinion and how he gets there. in iiia he looks at the mandate, only the mandate not the penalty. he says the best way to read that is as a command to buy insurance. he says two things. his command. to buy insurance.
and two, that command cannot be justified by the commerce clause or by the necessary and proper clause. that is the end of iiia. he then shift gears. imparts three b and three c of this opinion he says, given or holding -- even our holding, we need to be -- we need to determine if there some way to save the individual mandate. what he finds out in iiia and andes sorry -- in three b three c, given that the penalty is raising revenue for the government, he says we can glue the individual mandate provision to the penalty provision. once they are glued together, they function as a tax. such of the law can be saved by considering this as a tax, and that tax is available under the federal government's taxing power. what happened in 2017's congress took away everything that and iiic parts three b
of chief justice roberts opinion. this is no longer raising revenue for the federal government. it dollar can be fairly characterized as a tax. so why did the tc j parts three b and three c of chief justice robert opinion are irrelevant. the only thing we are left with is part iiia of chief justice roberts opinion where he holds that this is a command to buy insurance. toge elrod: we do not need be read to from the supreme court opinion, do we? thehawkins: i think we read supreme court opinion in light of subsequent events. the entire basis of three b and three c is now off the table. roberts in iiia holds that this is a command. this is supported by the four dissenting justices. there were five votes on the soup in court that it is a command, not justified by congress pattern are the
necessary and proper clause. and the best evidence is just as ginsberg's detent dissent. robertss chief justice for discussing the commerce clause. she said we should say this is the tax and be done with it. mr. hawkins: chief justice roberts rejected that in part 3 (d). he says i have to reach a commerce clause holding. and i have to it give it the best reading possible and then i have to assess whether that this reading is constitutional or not. only after doing that analysis, then do i get to the taxing issue. i think that interplay between chief justice roberts and justice ginsburg shows that the reading is correct. are differences
between the four different parts of section three of chief justice robert's opinion. judge elrod: what is it that you y insurance, but if you do not, you get an ice cream cone. you actually get something if you do not buy the insurance. what is the answer then. mr. hawkins: i am not sure how congress would justify that under its enumerated powers. judge elrod: the question is about -- doesn't matter even if you are given positive incentives cannot do it -- to not do it. mr. hawkins: i am not sure how that would be fairly red as a tax -- read as a tax. you would have a command to buy insurance. judge elrod: is it still a command? mr. hawkins: it is still a command, your honor. judge elrod: what if you get a house?
mr. hawkins: it is still a command to buy insurance. that is the holding in part 3 (a). judge elrod: it is not an analysis at all? mr. hawkins: they cannot do that. the question is whether that command, your honor's hypothetical, can be glued to something somewhere else in the statute. that is what the chief did. in the house buying hypothetical, that would be the question. i cannot think of how it would save it. but that is how the analysis should play out. judge elrod: could you address the ridge of erasure fallacy? "shall"triking the word a textbook example if there's no government official in forcing the word "shall"? mr. hawkins: your honor, i think it is important to tie it back to the relief we are seeking.
we are asking for a declaration that this law is unconstitutional. the mandate is unconstitutional. we are asking for an injunction against the enforcement of the individual mandate and against the affordable care act. judge elrod: striking out of a work. mr. hawkins: we are not asking the court to get out and a racer or tear pages out of the u.s. code. we are asking for specific forms of relief. declaration and injunction. i don't think there is any rich of erasure fallacy. -- writ of erasure fallacy. >> do you have any citation? meo not believe, and commit -- correctly if i am wrong. i do not believe justice roberts in the nfib opinion opined that all on that because he did not reset issue, having found as he
did in the prior sections. is there anything you can cite toto, like a best case, as how severability would be viewed by justice roberts? i read the dissent of course. we don't have a feel about it -- we know how they feel about in the context of that is. is there anything you can point to that would suggest severability in this case? mr. hawkins: i think the best case of that would be king v. burwell. that is about the various subsidies that go along with exchanges. chief justice roberts in describing how all this works talks about the individual mandate as being essential to the functioning of the other health care market reforms. he calls out the guaranteed issue and community rating provisions. it has always been understood by the obama and trump administration that it all fits together.
chief justice roberts does speak to that. i think that is the clearest statement all caps -- we have seen that the chief would agree. judge engelhardt: is the language he uses broad enough to consider? one of yourng -- colleagues was arguing and they mentioned the guarantee issue and the community rating amongst some other specific provisions that are intertwined. do you believe that his statements in king v. burwell are so broad as to include the entirety of the statute? mr. hawkins: i think they are, your honor. asking about chief justice roberts specifically. he indicated in numerous controls.that text we start with the text and when it is clear and is positive, we do not look further than that. i think he would agree that the inseparability clause should be clause shouldity
be respected. i believe the chief justice was in the majority, declaring the professional and amateur sports protection act unlawful in its entirety. the court reached that conclusion without the benefit of an inseverability clause that we have here today. i think to answer your honest question, there is ample jurisprudence to suggest that if -- is committed to the it follows that the entire affordable care act is inseverability from the constitutional mandate. judge engelhardt: my question was limited to the justice. he is the author of the two opinions we have been talking about a great deal today. mr. hawkins: that is right, your honor. they judge has said individual mandate is inseverability from the rest of the law. you combine that with the opinion in king v. burwell,
which was the six justice opinion, which shows that it is correct. problem? have an oil mr. hawkins: no, your honor. that is a case about the federal question of jurisdiction. what he was saying was that even though there is a federal statute, that does not get you into federal court automatically just by invoking that statute. instead, what the court needs to ask, under the inverse hypothetical, with rep. long: in state or federal court? -- with applebaum in state -- would that be long in state or federal court? if the hypothetical course is followed, you do not get into federal court just by virtue of the judgment act. that is what skelly oil is
saying. enforce theical to aca will be brought by the federal government. there is no skelly oil problem here. i believe the federal government agrees with us on that. they have a footnote on the brief actually. i am just about out of time. answer anyto additional questions. otherwise, we would ask the court to upper and the judgment below in its entirety. thank you, your honor. >> i am with the justice department on behalf of the federal government defendants. i plan to go through three points. i will go quickly through the ones the court has already addressed in detail. the first is why this court has jurisdiction to address the merits. the second is why the plaintiff's case succeeds on the merits. third is why the judgment should be limited to injuries the plaintiffs have standing to pursue your.
first, in the court's supplemental briefing order, some of them are complicated, but there is a simple answer. i think all the parties agree. this case follows the windsor model. the united states continues to enforce the aca and it will be so pending a final resolution of this case. isen that enforcement that sufficient to have an article three controversy between the plaintiffs and the united states and of course the participation of the intervenors is helpful to ensure a vigorous adversary presentation of the issues and that is basically exactly what happened in windsor. in both cases, the executive branch made a judgment that the statutory scheme was administering. the supreme court discussed the conundrum faced by the executive ranch and decided this was a reasonable way to allow the judicial branch to have the final say. that the not believe
executive branch is required to continue to enforce? it is a choice, right? enactment that might -- there's enactments that might be cost additional to a criminal law on the books but not constitutional but the executive branch can simply not enforce it and it would never get to court. -- it mayot because be prudential for you to wait for judicial supremacy but it is not required. >> i think that is correct. here. >> the executive branch is continuing to force -- enforce the aca. the supreme court discussed this conundrum in windsor. the majority accepted this as a reasonable way to manage, especially when you have a complicated statute that covers
a lot of what -- a lot of ground. that is what is happening here. the second point on jurisdiction, as we think the individual plaintiffs have standing based on the combined impact of the mandate which requires them to buy insurance, which ensures it is unsatisfactory. that is an injury that is sufficient for district court jurisdiction to evaluate the merits of the case. judge elrod: does the government take a position? under thel solicited massachusetts case? mr. flentje: we do not have a position on the standing. the district court did not address the state's standing. it raises a variety of issues. our position is because the individual plaintiffs had standing, it was simple at the adjudication stage and the district court handled things
correctly. given the have established standing, the court can go ahead and address merits and not get into those other issues. >> adopting the position that the district court's ruling applies only to the plaintiff. is that not designed to reflect on the lack of standing of the intervener states? mr. flentje: yes. the question with the intervener states is do they have standing to appeal the district court judgment? look at the declaratory judgment. under that declaratory judgment it declares the rights of the plaintiffs vis-a-vis the united states. it does not say anything about the rights of the intervener states or the house, although they are not talking about that. so i think the way to handle and probably not
fully satisfy the intervenors states, is to make clear that they would not be bound as an manner because they are not participating as parties withstanding. judge elrod: your own case summerhouse or here, too, if they were eligible? mr. flentje: i don't want to suggest anything. judge elrod: everybody else here the district court opinion says what it says. they say this was in lieu of injunctive relief in the thernment is smack dab in middle of all of this understanding, and you are saying something different. the declaratory judgment. a final declaratory judgment declaring the right between us and the plaintiffs, the federal government will follow that judgment as to what the law means between the parties. talked about only doing it in this state. we will do it with respect to
the plaintiffs. if that means additional actions would need to be taken that had an impact beyond those states, that would be part of following the law as declared by the district court. i do not know that there is a big daylight between what an injunction would mean and what a declaratory judgment would mean at the end of the day, once there is a final ruling. so, that getsand me to the point. a lot of these technical issues are important when you are talking about district court judgments, but a case like this likely would end up with a presidential decision at this -- precedential decision. it binds it as precedent. there are technical issues on the scope of the judgment how that would work in a different context. judge elrod: the district court was modest in the extent it granted a stay of some order pending all of this going on.
what if that stay were not in place? what would happen? what is the government planning to? mr. flentje: again, we think it is great that the state is -- is in place. it is a significant part of the economy. that was important to the united states. compliance for the declaratory judgment that is final and on appeal, that raises competency issues. we are appreciative those do not need to get sorted out until there is a final ruling and the case is fully resolved and the appeals are exhausted. judge elrod: the government believes or anticipates that it could find the act to be inseverability, and do so only in certain states and strike it down only in certain states in its entirety?
the government believes that is a possibility? mr. flentje: again, i think a lot of this stuff would have to get sorted out and it is complicated. that is one reason the stay was granted. the states andre they are part of the declaratory judgment. i think that raises a lot of complicated issues which i think he is in favor of the stay and getting a final resolution with all appeals exhausted before that step is taken and then go from there. so. judge elrod: your position is we are not nearly there. we are not meeting to remedy at all. mr. flentje: there is a final remedy. the aca is declared invalid. that is a little overbroad. sorry. judge elrod: it does not say where it applies or whether it applies beyond these parties.
mr. flentje: that's right. that comes from the declaratory judgment act. it says we cannot apply the aca to these plaintiffs. that is what it means. we have not gone down that road yet. havetervening states intervened even before the motions were pending in the case. they intervened, if i recall correctly, from the briefs, prior to the amended complaint, .o they are early on the district court's judgment does not make a distinction. i realize the issue was not before it so it could clarify. inwe have what we have here this court. plaintiffs were seeking the declaration of the rights between the plaintiffs and the united states. they were not seeking a declaration of their rights amongst each other. judge elrod: use the word parties? i thought the district court used the word parties. mr. flentje: i would have to
check that. i do not think that would be -- judge elrod: does that mean the intervenors who were already at the party so to speak? mr. flentje: we think that would be a misuse of the judgment act given -- i do not think they would have a basis of seeking a declaratory judgment against the state. we are the ones who enforce the aca. that would not work. reading parties in that manner is reasonable and the way to go there. i think it is a simple solution. the states could get some comfort if this court made clear they would not be stopped -- estopped or bound, aiding the court in an adversary position, presentation. judge elrod: that is an interesting statement for you to make. i. flentje: well, i mean -- just -- we think that is how the
law would work. the operation of an opinion of this court would work that way given the scope of the declaratory judgment act, given the standing issues, and given the fact that it can only declare the rights between the people on the same side of the fence here. those other rights that can be declared under that statute. the only other thing i would say on remedy is we differ with the plaintiffs. the remedy should also be limited to the injuries that are established by the plaintiffs. again, we think this is more of a technical point. it is a very important institutional point for the governor -- government that judgments should be limited to the dispute between the parties, and the injuries that establish standing for the plaintiffs. again, we do not think that needs to be sorted out, which provisions the aca would be covered or not the covered
because that was not addressed in the district court. it would require an assessment of injuries to texas, which the district court did not conduct. it might all be obviated if rulings a precedential that might resolve these issues as a matter of precedent. judge elrod: that is a little bit vague. it seems there is an argument that it was inseparable -- inseverability all the way. but then the government said there's only a couple of the other provisions which would be wrapped up in it. for example, the restaurant provision would not be wrapped up in it or these criminal laws. what is the government's position? it is inseverable. mr. flentje: the mandate? and also the insurance reforms. judge elrod: so it is in
severable from those but not for the rest. is that right? mr. flentje: our argument on the scope of the judgment is totally separate from our argument on inseverability. , you look at what the unconstitutional provision in light of the statute as a whole. looked at it. you cannot access it without analyzing the will statute. statute.l -- whole it was all an acted together. judge elrod: are you saying it is entirely inseverable now? some carts could be that some parts could be kept? the whole thing has to go? mr. flentje: the entire act is inseverable. the judgment might still be limited. the judgment of the district court should still assess the injuries that these various provisions caused plaintiffs and should not declare a provision that has no impact on the
plaintiffs to the unlawful based on applying severability. the reason this is inseverable is because the whole statute rises or falls together. a non-dings network as severability clause. we have all this assessment of severability but looks at the statute as a whole. court's legal reasoning, you can say the statute rises and falls together. the judgment needs to be narrowed a little bit. the declaratory judgment to those provisions that injure an impact the plaintiffs. and send the case back. we litigate that in the district court when the district court was writing the partial declaratory judgment. mr. flentje: i mean, i think -- judge elrod: to the extent -- mr. flentje: we think it is an article three issue.
we did raise it in our brief for the court for the first time. that, itnk, given would be appropriate to remand to consider the scope of the judgment on that point. but again, we think it is more ,f a technical point because again, the severability analysis requires looking at the statute altogether. precedentialere's impact of this court's decision or a higher court's decision that could make sorting out a lot of the details unnecessary down the road. judge elrod: thank you. i think we have your argument. mr. flentje: thank you. >> good afternoon, your honors. the it please the court. here onis robert henke behalf of the individual plaintiff.
they have standing to bring this action because they are directly injured by the affordable care act and the relief they seek would redress that injury. my clients clearly have an injury in fact, pocketbook injury. it is the law of the land that they have to purchase a product that they do not want. record is, the undisputed on that. appealto the record on were mr. hurley states i am obligated. i am obligated to comply with the affordable care act's individual mandate. furthermore, the record on appeal, i clients are additionally injured by expensive coverage, loss of dr. toys, decreased quality of care, and rationing of care.
they also must incur the cost of virus reporting requirements related to the filing of their taxes and compliance with the individual mandate. in response to the appellant's that the injury is self-inflicted, one only need to look at the text which mandates certain individuals "shall ensure they are covered under minimal essential coverage." noteworthy are the exceptions which provide certain other individuals remain subject to the mandate but are exempt from the penalty for noncompliance. the aca contemplates the individual mandate carries the force of a command because categories of persons are subject to it without penalty. in the individual mandate. yes, ma'am? >> it is your position that those people would have standing even if they were not buying insurance, if they were in one of those exempted categories? back at the time of the original argument, i believe justice
kagan asked a question about that, whether or not people who do not have to pay the penalty automatically who are exempt, would they have standing? mr. henneke: there is still a command. it is a great point you bring up, your honor. i want to go back to the history addressoid and whether my clients harmed was was-inflicted -- harm self-inflicted. the shared responsibility, the choice is alleged by appellants was not affected until 2014. and if i was 2012 -- nfib was 2012 before. it was the individual mandate, not the penalty. in denying the government's motion to dismiss on standing, the nfib trial court correctly held the individuals had an
injury. this argument was carried through the 11th circuit and all court, to the supreme where it was addressed during the first day of argument and questions from both the chief justice and justice kagan. justice kagan was questioning the attorney for nfib. do youge katz -- think a person who is subject to the mandate is not subject to the penalty would have standing? he responded yes, i think that person would, because that person is injured by compliance with the mandate. justice kagan asks, what would that look like? what would the argument be asked to what the injury was? whenplies, the injury, that person is subject to the mandate, that person is required to purchase health insurance that is a forced acquisition of an unwanted good. it is a classic pocketbook injury. judge elrod: council, what do you say to those who might say
or argue that the court did not actually make a standing. it would be considered a drive-by standing. to use that colloquial term. what would you say to that? while there might be questions mean weic, it does not have answered a question of certain way. mr. henneke: we cannot say that the supreme court nfib did proceed forward to resolve the merits of the case. i believe it is implicit that it was resolving this question of the individual plaintiff's standing in the affirmative by reaching the merits after oral argument. the trial court correctly did so here. if you look at the case history, this is ground that has been well covered. individual plaintiff standing has been addressed and resolved. and again, going back to the
text of the aca, the other side's argument is wrong because the choice language only arises in the context of -- and a mandate was recognized as not being a choice in section three 3(a), when chief justice roberts found it was best construed as a command to buy insurance. i would also like, your honor, to address a second task to traceability, and that was addressed in the notice of supplemental authority we filed left we with regard to the supreme court case. we already argued how my client's injury is directly traceable to the individual mandate. point to the court's record on appeal. without the individual mandate, my clients would not be required, in violation of the
constitution, to maintain specific health insurance coverage nor would they be subject to an increase regulatory burden. the supreme court recently upheld standing as a result of the predictable effect of government action. action and that is a slip opinion page 11. traceability in the department of commerce was met when third parties reacted in predictable ways to the citizenship question , even when they did so on -- unlawfully. here, the predictable reaction is awful. and -- is lawful. unpredictable reaction to the individual mandate legal command. new york relied on historical data to show predictable effect. in this situation the 2008 and 2017 congressional budget office reports conclude that some individuals will comply with the
mandate absent penalties. >> if we were inclined assuming to take that argument would that mean we would have to overrule our other opinions which might say that third-party causation is not enough to generate standing? >> we have even better, the direct evidence of the individual leg gives that is greater evidence to establish standing. >> you don't need that argument. >> we don't need the census argument. i think it bolsters that traceability argument. and explaining how it is fairly predictable and supports the testimony of my client that the command in the statute is what they have done, it is not the predicted effect my it is what happened. and the result of that is that they continue to maintain minimum essential coverage because the law says they have
to. going back to the record, which 637 and 641.ted in unless there is additional questions, we request that you inform the trial court judge. >> thank you. >> thank you. >> are we going in a different order? >> yes, we are, i am arguing rebuttal for seven minutes. thank you. if i could pause for one second, this is why i became a lawyer, i hope you are enjoying yourselves as much as i am. also i apologize, i was remiss mr.re, like to introduce
reaseberg. i have several points in response to the arguments that have been made. the first is judge elrod, you asked the key question about, you mentioned the menus that would be struck down. remember the kinds of provisions here that would be struck down if there is no severability is for example, the provision about when you can be denied, your charged more for pre-existing that provision that children can be kept on parents until age 26. these would be struck down if there is no severability. best isn't the house the
entity to remedy, can't they put together a cafeteria style package of all these individual features that are so attractive, the ones you are talking about an popular in various quarters, can't they put them together and vote on them like that and pass -- and ridngs that out the issue of severability here? >> it is the congress and president. >> i would start with that house. that is who you represent. >> the president would sign that it know, obviously not. >> that is the point. that is exactly the point. there is a political solution you, various parties are asking this court to roll up its sleeves and get involved, isn't that exactly the point question mark in that why the senate is not here? your honor. >> truthfully, truthfully. >> that is not the point. >> why is it -- why does
the article three judiciary to become that taxidermist for every big-gameve accomplishment that congress achieves? congress can fix this, it can fix it after nfib. douglas: yes, your honor, that same statement would be true in every severability case and yet we know the supreme court has said to you, congress does not have to fix this. you can fix it and the supreme court has told you how to do it. iintain everything you can can stand on its own and be constitutional. the supreme court has ordered you to do that. there is another option. every single severability case is going to, the same question
could come up. if i might add one more thing, supreme court cases are legion. should draw importance for the fact that congress has not passed a new statute. the supreme court has said over and over again that is wrong. you cannot and should not draw any meeting from that because the members of congress and the president might feel that the law is absolutely clear and therefore, there is no need for further legislation right now. does what the supreme court has instructed, you will keep in place the .verwhelming percentage i take your point, your honor, and i take it this can be frustrating but remember, every severability case has that same issue. attorney from the department
of justice, we have been friends for many years but what he is arguing here, the doj position makes no sense. provisions batch of in the affordable care act that you cannot divide up by state. for example, the affordable care for best provided for a system of bio-similar drug approvals so the fda would approve certain drugs that otherwise it might not have. the fda is going to approve drugs for sale in texas and arizona but -- the opposite. approved drugs for california and other states but not for sale in arizona? yet. are not to that point now, it is a partial summary judgment and so we are not to the point for the federal government has to parse that out. letter: the court issued an
order, the court did not issue an injunction because the justice department said please don't, we don't like injunctions in situations like this and do not worry, we will apply the statute as your honor rules, i argued that for 40 years when i was with the justice department. that is our standard position. you cannot then turn around and not do anne did injunction and we will say it has to go back to the district court. the problem is -- >> go back for the courts to parse through all those. , do yout-case scenario want to go back for the court to parse through all of those provisions you were just listing? mr. letter: no, your honor. the district court has already said the whole statute is unconstitutional and texas and the justice department has said that is absolutely wrong, that is so inconsistent, the
severability doctrine. >> the district court cannot do that? i thought i understood you in response to my question to say we are charged in terms of severability, we are charged with that responsibility. mr. letter: i think i missed out -- i mis misspoke. this provision will be applied in california but not texas. there are parts of the affordable care act -- >> what about administerable. california would like to go back to the district court and say it does not apply in california and that is what i was trying to say all along. mr. letter: we are in total agreement that we think this court has an obligation to now, the district court has set it up you have the
obligation to look at that and say that is not what the law says, that is not what the supreme court has instructed. we do not want this to go back to the district court, the court has already ruled -- >> it has to go out to the district court. if some other thing does not happen in some appellate proceeding along the way, it would on medically have to go back to the district court. we believe this should do is you should say the erred.t court the main thing we think you would do if you would uphold what congress did or the minimum again, hewitt say the individual mandate is struck down, but that is so clearly severable because the text of the 2017 act made clear the rest of the statute remains in effect.
>> i would be the district court, wouldn't it? you would have to fax the district court and have your rep of proceedings and all the things that would normally happen. [inaudible] mr. letter: it is partial because i believe the rest of it depends on that. hold there is no standing and the case ends but if you hold that the rest of the statute is severable, i am not sure what else the district court would have to do that. that would be the judgment of this court. or --uessing that texas they would take that to the supreme court. i don't believe this must go back to the district court. >> if we held hypothetically that it was severable, we would say district court, do your best severability in the first
instant, take out your blue pencil. mr. letter: you would do that. >> and any other normal case you would send it back to the district court in the first instance to make the best stab at trying to implement the ruling that we made. that would either normal proceeding in 100 cases we have for this month. court, the appellate that says the law directs all the rest of the statute based on and i want to emphasize we are talking about the text, the 2017 statute that all the rest is severable. that is what we think. if you were going to find and strike down the individual mandate, that is what you would do. we think you have to do that. reasone would not be any to send that back to the district court to say go line by line and figure out which part is severable. you would have ruled the supreme court doctrine says no.
it has to be evidence that congress would not have wanted it under the 2017 act, that clearly cannot be done. >> we need to wrap it up. >> i am sorry. we last thing a want to say, talked about the severability. inseverability clause. he is referring to the act. in 2017 congress made clear that if you get rid of the mandate leave the entire rest of the statute in place. findings,ng the right? >> they apply to a different statute. there is no reason to repeal the findings. life has changed and it is a different statute. the 2017 statute. thank you.
>> i will try to be brief. there are three points i want to address. the first is about our state standing. as i understood the federal government supplemental brief, they did not say the remedy they were closing would not harm us. cannot show that without knowing the scope of the remedy they are proposing. they say the remedy should only apply to the provisions that injure the plaintiff's and having to explain how they would administer this in some parts of the country but not others. the second point picking up on mr. letter left off, the findings are not in and in severability cause. -- clause. it is an enforceable mandate that had a several hundred dollars tax and were adopted for a different purpose. that memorialized the congress's views that enforceable individual mandate with its
proper exercise of the commerce clause, that may have also reflected the 2010 congress's view that made enforceable individual mandate was an important and necessary to the proper functioning of the individual markets. in 2017 congress drew a different conclusion and we know that by looking at the text and what they did in that act was make the minimum -- the individual mandate unenforceable. congress had no need to repeal -- repeal thety findings in order to express its intent on that point. it just had to act. my final points, your honor, the court can hold the individual mandate is the valid or you can hold it is not enforceable. it doesn't matter. that is exactly what congress did in 2017. it made the mandate unenforceable. to this court is to use that action as the basis 27thrdering what the
congress repeatedly refused to do and that is repeal the affordable care act. >> california is not harmed if the court were to say the mandate is stricken, is it question mark >> the only ruling is a declaration that the individual mandate is unconstitutional and not enforceable. we are not harmed by that ruling. if there are no further questions, we respectfully ask you reverse the court's judgment. thank you very much. >> we appreciate your arguments and -- in this very complex case. i appreciate all of your preparedness today. thank you. the court will stand in recess until tomorrow morning at 9:00 a.m. >> c-span's washington journal live every day with news and policy issues that impact you. coming up wednesday morning. board members of the one country
heidi heitkampng and jd shelton talk about their groups campaign to reinvigorate the democratic hardee's relationship with world issues and voters. ohio republican congressman bill johnson who serves on the house budget committee will discuss the debate over federal spending and efforts to avoid another government shutdown. emily martin of the national women's law center will join us talking about efforts to close the gender pay gap. be sure to watch "washington journal" live at 7 a.m. eastern wednesday morning. join the discussion. >> live wednesday on the c-span networks. the u.s. house begins work on the 2020 defense authorization bill. 10:00 a.m. eastern on c-span. they30 p.m. on c-span2, are sitting continues work on judicial and executive nominations. on c-span three at 10, the house
financial services to many hears from federal reserve chairman durham powell on monetary policy. at 2:30 p.m., the house oversight subcommittee examines the conditions of my grandchildren in federal facilities near the u.s.-mexico border. during an oval office meeting with the american qatar, president trump was asked about the role of labor secretary alex acosta in the case of jeffrey epstein back when he was the it u.s. attorney in for to. house speaker nancy pelosi and chuck schumer are calling for secretary acosta's resignation. president trump: thank you very much, it is a great honor to be with the america to our, a highly respected man and a huge later. we have known each other a long time. we have been friends for a long time. a