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I'm so scared
Chief asks CA SG Mongan about standing -- are people who don't buy health insurance in violation of the law? Mongan says no.
Chief wants to know if they'd have to say they violated the law in the future. (Mongan says yes if you read it as a command.)
Chief wants to know if they'd have to say they violated the law in the future. (Mongan says yes if you read it as a command.)
Chief still on standing -- he wants to know what if Congress says everyone has to mow their lawn & makes a ton of findings & their neighbors know they aren't mowing their lawn/are in violation of the law.
CT: There is no penalty for not wearing a mask, but there's social opprobrium. Does the person have standing to challenge the mask mandate?
CT (still on standing): He asks CA SG about the relationship between standing and severability (since some of the arguments for why the plaintiffs are harmed is that they are injured by other provisions in the ACA, in combination with the minimum-coverage requirement)
Breyer, doing what he did yesterday (such a mensch), gives CA SG an opportunity to continue answering CT's question and respond to the federal government's theory of standing (that other provisions in the ACA injure the plaintiffs)
Mongan says this is inconsistent with the Court's precedents, create advisory opinions, and greatly expand standing.
HERE COMES SAM: ACA increased Medicaid enrollment, why doesn't that injure Texas?
Mongan responds that that is another provision of the ACA, not the one plaintiffs argue is unconstitutional.
SAM: "But there is logic to Texas's theory!"
Mongan responds that that is another provision of the ACA, not the one plaintiffs argue is unconstitutional.
SAM: "But there is logic to Texas's theory!"
Mongan reiterates his response to Breyer/Thomas, and says it would allow plaintiffs to challenge any statute (given how massive statutes are today--enacted with so many provisions).
Mongan moves to the merits and says that Texas/USFG's interpretation of the provision makes no sense (since it imagines Congress made the mandate more forceful and did so in a way that #SCOTUS had said would be unconstitutional).
Alito wants to go back to standing.
Alito wants to go back to standing.
He asks whether USFG could proceed against state on calculation method (that Texas says increases Medicaid enrollment). Mongan reiterates that that is not about the minimum coverage requirement, the challenged provision.
Sotomayor nicely rephrases Mongan's argument: If they think other provisions in the ACA injure them, they should bring a claim challenging those provisions.
She then asks for the best argument why the minimum coverage requirement shouldn't be read as a command.
She then asks for the best argument why the minimum coverage requirement shouldn't be read as a command.
Essentially, she is throwing a response to Roberts' questions -- that his questions assumed the statutory provisions were mandates, but the CA SG & House are disputing that the minimum coverage requirement is a mandate. They say it is not.
Sotomayor wants Mongan to talk about why the everyday citizen would understand that the ACA does not impose a mandate. Mongan says the Court had an authoritative holding in NFIB v. Sebelius & Congress & POTUS statements that they got rid of the mandate.
Sotomayor then asks the challenge is to plaintiffs' standing -- legal or factual. Did they fail to show that the ACA amendment increased costs to the states, or is that their arguments are legally insufficient? He says facts.
Kagan comes back to standing -- why isn't it reasonable to think that more people will buy insurance in light of the law? And more people buying insurance costs us $.
Mongan says that's enough at pleading stage, but not at summary judgment -- that plaintiffs didn't prove it.
He then says they'd be happy to have Court reach the merits, & that this Court's opinions don't allow standing.
When pressed, he says that opinion is Lujan.
He then says they'd be happy to have Court reach the merits, & that this Court's opinions don't allow standing.
When pressed, he says that opinion is Lujan.
Kagan comes back to individual plaintiffs' standing -- why isn't it enough that Congress told them "we'd like you to do this thing" and they don't want to?
Gorsuch continues with standing -- couldn't the US still bring a civil action to enforce the mandate? (Mongan says no.)
Gorsuch: Assume you're mistaken, and the US can bring an enforcement action. Would that change standing analysis?
Mongan: Possibly, but plaintiffs would still have to show a real threat of enforcement, not a mere possibility.
Mongan: Possibly, but plaintiffs would still have to show a real threat of enforcement, not a mere possibility.
Gorsuch: So individual Americans would have to wait for an enforcement action instead of challenging a command?
Mongan: That's how we read your cases, but on the merits it's not a command.
Gorsuch: Wants to confirm that challenge to state standing is factual (Mongan says yes).
Mongan: That's how we read your cases, but on the merits it's not a command.
Gorsuch: Wants to confirm that challenge to state standing is factual (Mongan says yes).
Mongan: Invoking the census case, there aren't specific facts, official documents, government memoranda showing this effect.
Gorsuch: All we need is substantial risk of effect, why isn't the CBO report that more people will enroll bc they want to comply with the law sufficient?
Gorsuch: All we need is substantial risk of effect, why isn't the CBO report that more people will enroll bc they want to comply with the law sufficient?
Kavanaugh: Individual standing; what if Congress passed a law requiring people to fly American flag. Under Lujan, isn't that enough?
MONGAN: PLEASE LET ME TALK ABOUT THEIR UNTENABLE MERITS POSITION
Kavanaugh has a question on the merits! Under NFIB, it was a tax because it raised revenue. Now it doesn't -- how do you respond?
Barrett (also on the merits): What should we make of the fact that Congress hasn't repealed the provision? You're asking us to say they effectively repealed, but they didn't do that.
Mongan: This Court construed it as a tax, so zeroing out penalty is natural thing to do.
Mongan: This Court construed it as a tax, so zeroing out penalty is natural thing to do.
Barrett: What if you have to certify whether you complied, and the government keeps track of that. Isn't that an injury?
Mongan: If the Court disagrees with us and says this is a command, then the remedy is to enjoin it. It would be deeply problematic for the nation to leverage an inoperative requirement to tear down hundreds of provisions.
Barrett cuts him off, says ACA requires certification.
Barrett cuts him off, says ACA requires certification.
Mongan says there's no obligation; Mongan now wrapping up.
Hard to know what to make of the fact that most questions were about standing, not merits or severability.
That said, conservatives seem to think there is standing. And their hypos assume the ACA provision is a command, which is not good on the merits for the ACA.
That said, conservatives seem to think there is standing. And their hypos assume the ACA provision is a command, which is not good on the merits for the ACA.
Don Verrilli now up-- the plaintiffs are asking this Court to do what Congress would not.
"THIS IS NOT A GAME." - Don Verrilli.
Chief: "Eight years ago, those defending the mandate [note that was Verrilli], said the mandate was the key to all of the other provisions in the ACA. But now, they say no everything is fine without it. Why the bait and switch?"
Chief: "We spent all that time talking about broccoli for nothing?"
Sorry I felt very ~seen~ by that.
Verrilli: Congress learned/updated that the "carrots" to obtaining insurance were enough without the sticks. 2017 amendments reflect that.
Verrilli: Congress learned/updated that the "carrots" to obtaining insurance were enough without the sticks. 2017 amendments reflect that.
Chief: Do you think that the paperwork burden on states = standing?
Verrilli: No, because burden flows from provisions other than the challenged one. So unless Court accepts standing through inseverability.... (i.e., that they can challenge other provisions that aren't severable)
Verrilli: No, because burden flows from provisions other than the challenged one. So unless Court accepts standing through inseverability.... (i.e., that they can challenge other provisions that aren't severable)
Thomas: This provision was the heart/soul of ACA. The provision hasn't changed except for the penalty. Why was the penalty provision so critical to the centrality?
Verrilli describes opponents argument --unenforceable provision with no penalty is somehow central then debunks it
Verrilli describes opponents argument --unenforceable provision with no penalty is somehow central then debunks it
1. Doesn't describe what happened; no one thought retaining some moral persuasion was essential 2. CBO said this has same effect as repeal 3. Everyone shouted that this was a repeal 4. Congress wouldn't prefer to bring all of ACA down even if thought moral persuasion effective.
That was a very efficient and effective reply!
Justice Breyer! (No one called on him, so he wasn't sure what to do!)
He had to call on himself! ("Justice Breyer?" he said!)
OMG. Justice Breyer doesn't get an answer! Justice Alito says "isn't Justice Breyer still on?" and Chief says "No!" Justice Breyer is SO SAD "But my machine wasn't on/working"
So ... we basically skip Breyer?
Alito asks about standing through inseverability.
I am still over here, fuming about the Chief skipping Justice Breyer.
I am still over here, fuming about the Chief skipping Justice Breyer.
I will be enraged about this for the remainder of this hearing and honestly for a long time.
NO ONE PUTS STEPHEN BREYER IN A CORNER
NO ONE PUTS STEPHEN BREYER IN A CORNER
OMG Alito is embracing the "silver bullet" theory -- the idea that some Republican representatives voted for the amendment in order to make the ACA minimum coverage requirement unconstitutional, and in order to make the whole law fall.
Verrilli: The Court should not embrace the idea that Congress violated its oath to get the Court to kill the law.
FINALLY: The Chief apologizes for Breyer for the audio difficulty and says we'll go back to him
Breyer, ever the mensch, says "thank you, but that's okay."
Breyer, ever the mensch, says "thank you, but that's okay."
VINDICATION FOR STEPHEN BREYER
Sotomayor following up on the severability, pointing out that Congress tried to repeal ACA and failed. Verrilli says yes, objective evidence is that the amendments were not a way to repeal the entire ACA
Sotomayor asks Verrilli to talk about states' theory of standing -- that more people enroll.
Kagan -- asks Verrilli about the "relics" of the old view that the mandate was key to everything (Congress's findings in the ACA, what the challengers call -- mistakenly -- an "inseverability" clause). What do we do about that finding, does it constrain us?
Verrilli: 1. Doesn't overcome presumption of severability because it's not inseverability clause (doesn't say anything about severability); 2. Finding is not operative provision; 3. Finding expresses 2010 Congress view about state of affairs in 2010 -- addressing 5000A as enacted
4. 2017 Congress couldn't possibly have agreed that a requirement backed by tax consequence was essential because 2017 Congress eliminated tax consequence, so they didn't share the view of 2010 Congress in finding.
Will you strike down the law bc they didn't clean up the finding?
Will you strike down the law bc they didn't clean up the finding?
5. Verrilli says nothing to clean up because it's not operative; also the text of the finding talks about creating the market, but market has already been created -- Congress was predictive in 2010, but that's no longer relevant.
GORSUCH: Lets talk about merits; commerce & necessary and proper clause aren't options for mandate, and neither is tax clause. what's left?
Verrilli with some BIG DON ENERGY: I think it would be helpful to explain how we see this.
Congress starts with Court's definitive construction; Congress had power to reduce tax penalty to 0; what remains is nonoperative statute w/o consequences --> effective repeal.
Congress starts with Court's definitive construction; Congress had power to reduce tax penalty to 0; what remains is nonoperative statute w/o consequences --> effective repeal.
GORSUCH: Assume the mandate is still SOMETHING, it's on the books. Why aren't you foreclosed by NFIB?
Verrilli: We're not making an argument under the CC because of NFIB. It's inoperative so we don't need enumerated power, just like when Congress enacts hortatory statute.
Verrilli: We're not making an argument under the CC because of NFIB. It's inoperative so we don't need enumerated power, just like when Congress enacts hortatory statute.
Verrilli: If you think we need enumerated power, this is N&P to taxing power because leaves in place framework for congress to create a tax in the future.
kavanaugh: assume standing; on the merits, mandate difficulty to justify under taxing power & commerce power. can you explain your N&P argument?
kavanaugh: okay, assume i don't agree with your N&P argument. i tend to agree you're right on severability. one of my questions is "would that have been the right result under 2010 act, or did that change in 2017"?
verrilli: amicus in 2010 made strong argument for severability, but 2017 congress would clearly prefer severability.
side note: the house made the right call having don verrilli argue this case. that much is clear.
barrett: if court invokes constitutional avoidance, isn't congress free to revise the statute to raise constitutional question?
verrilli: sure, but presumption of constitutionality still applies. and court definitively construed 5000A, and Congress can rely on that. no clear evidence otherwise.
Barrett: But why couldn't we say Congress zeroed out tax, foregoing tax power, and chose to rely on the commerce power.
Verrilli: There is zero evidence that Congress was doing that.
Verrilli: There is zero evidence that Congress was doing that.
Don Verrilli wrapping up. The health care sector reshaped itself, & millions of Americans rely on the ACA. To assume that Congress put all of that risk in 2017 is to attribute a recklessness that is without foundation in reality and jurisprudentially inappropriate.
and now Texas SG Hawkins
Chief: On severance question, hard to argue that Congress intended entire ACA to fall when the same Congress did not even try to repeal the rest of the Act. I think, frankly, they wanted the Court to do that but that's not our job.
THE CHIEF JUSTICE IS NOT AMUSED.
THE CHIEF JUSTICE IS NOT AMUSED.
I wrote about how that's what the states/Trump admin were asking the Court to do in @NBCNewsTHINK (and why the Chief would not be amused) here: https://www.nbcnews.com/think/opinion/supreme-court-faces-republican-pressure-be-activist-scrap-obamacare-how-ncna1099351
Hawkins: They wanted to give people a tax cut, but wanted to keep mandate in place in order to make the law function.
Chief: You treat the findings as an inseverability clause, but this doesn't look like any other inseverability clause in the US Code.
Texas SG: No magic words are required to create inseverability clause; this is repeated emphasis that mandate is essential.
Texas SG: No magic words are required to create inseverability clause; this is repeated emphasis that mandate is essential.
Thomas: We're shadowboxing. The mandate has no enforcement mechanism (**note Justice Gorsuch seemed to think it did), so it's hard to see what the threat of an enforcement action might be -- what's your injury?
Note: I take this as a friendly question giving Tex SG opp to talk.
Note: I take this as a friendly question giving Tex SG opp to talk.
Texas SG: WE HAVE SEVEN REASONS
(He only talked about one of the seven.)
Thomas: At what stage would you determine inseverability? Standing? But I think of it as statutory construction about merits. Comment?
Thomas: At what stage would you determine inseverability? Standing? But I think of it as statutory construction about merits. Comment?
Breyer: There are lots of statutes that say "do this" or "do that" but have no penalty or enforcement. "WORLD WAR 1! THE ENVIRONMENT!" "Dozens & dozens....are all those statutes open to challenge? None of them? If so YOU LOSE. If it's in between, which ones are and which aren't?"
STEPHEN BREYER IS HEATED AF. Clarifies his question is on the merits.
He is trying SO HARD to get an answer and stay within his time limits. It just breaks my heart a little.
He is trying SO HARD to get an answer and stay within his time limits. It just breaks my heart a little.
"YOU'RE MISSING THE POINT. ON EACH OF THEM, IF A PENALTY, WOULD BE UNCONSTITUTIONAL. NOW, NO PENALTY. DO YOU SAY NONETHELESS THEY'RE UNCONSTITUTIONAL? If so, there will be a lot of awful lot of language/statutes subject to challenge"
Texas SG: If purely hortatory or suggestion, they're fine. BUT THIS IS THE LAW -- YOU HAVE TO PURCHASE HEALTH INSURANCE.
(Note, those are the law too, and the law does not require people to purchase health insurance.)
(Note, those are the law too, and the law does not require people to purchase health insurance.)
Alito has Qs about standing -- giving Texas SG opportunity to bolster argument.
Sotomayor also asking about standing -- don't you have to prove that people *wouldn't* enroll for Medicaid/CHIP when it had a tax penalty, but they *would* do so now when there's no penalty for it? At some point common sense says ... "huh"?
(Based on Chief + Kavanaugh, it seems that challengers were lose on severability, but there seem like 5 votes to say that the 2017 amendment to the ACA rendered the minimum coverage requirement unconstitutional.)
For why that's silly, see @nicholas_bagley in @TheAtlantic: https://www.theatlantic.com/ideas/archive/2019/07/texas-v-us-rise-know-nothing-judge/593959/
and @marty_lederman: https://balkin.blogspot.com/2018/12/there-is-no-mandate-oh-and-by-way-judge.html
https://balkin.blogspot.com/2018/06/just-how-indefensible-does-argument-in.html
and @marty_lederman: https://balkin.blogspot.com/2018/12/there-is-no-mandate-oh-and-by-way-judge.html
https://balkin.blogspot.com/2018/06/just-how-indefensible-does-argument-in.html
Sotomayor on merits: In NFIB, we said that we couldn't read the text of 5000A your way or it would be unconstitutional. Congress didn't amend that ... why are we here?
Kagan (on the merits): " In NFIB, we held that the ACA is not an unconstitutional command. Since then, there has been this change -- reducing penalty to 0, which MAKES THE LAW LESS COERCIVE SO HOW DOES IT MAKE SENSE TO SAY THAT WASN'T AN UNCONSTITUTIONAL COMMAND IS ONE NOW
Texas SG: I dispute the premise
Kagan: Actually, I think you have to accept that holding since that's what allowed the ACA to remain in existence all this time. So whether it's 4+1 or whatever the holding is the aca is not an unconstitutional command.
Kagan: Actually, I think you have to accept that holding since that's what allowed the ACA to remain in existence all this time. So whether it's 4+1 or whatever the holding is the aca is not an unconstitutional command.
Texas SG: You're not bound by that because predicate changed.
Kagan: The only thing that changed MADE THE LAW LESS COERCIVE. IF YOU MADE THE LAW LESS COERCIVE, HOW DOES IT BECOME MORE OF A COMMAND?
Kagan: The only thing that changed MADE THE LAW LESS COERCIVE. IF YOU MADE THE LAW LESS COERCIVE, HOW DOES IT BECOME MORE OF A COMMAND?
Kagan: You're just disputing what we held in NFIB. <Justice Kagan is not amused.>
Kagan, still on merits: Are the people who were exempt from tax penalty under originally enacted under 5000A in violation of the law, since it was a command?
OMG THE TEXAS SG SAYS YES THEY HAD AN APPLIED CHALLENGE
OMG THE TEXAS SG SAYS YES THEY HAD AN APPLIED CHALLENGE
KAGAN: I'M SORRY ARE YOU INSANE? (That's editorializing.) "The people who never had to pay a penalty were subject to a command, but the people who did have to pay a penalty were not?"
This is truly wild....
Gorsuch: What do you say about argument that Congress has power to keep framework in place in case it wants to increase tax later?
Texas SG: This can't be a tax because it doesn't raise $.
*Note: As House explained, arg is Congress can zero out + keep framework under N&P Clause
Texas SG: This can't be a tax because it doesn't raise $.
*Note: As House explained, arg is Congress can zero out + keep framework under N&P Clause
Texas SG: THIS WOULD MAKE ALL OF CONGRESS'S POWERS UNLIMITED!!!!!
Gorsuch is asking about what the coercive/enforcement remedy between parties would be (you have to show there is one in order for there to be a declaratory judgment available).
Kavanaugh: Assume there is standing. On the merits, I'd like to challenge all of Justice Breyer's premises. Mongan said there are no examples where Congress has enacted a mandate.
*NOTE THIS IS BREYER'S POINT. HE SAYS THERE ARE LOTS OF COMMANDS THAT WE DON'T SAY ARE MANDATES.
*NOTE THIS IS BREYER'S POINT. HE SAYS THERE ARE LOTS OF COMMANDS THAT WE DON'T SAY ARE MANDATES.
I WILL NOT TAKE ANY FURTHER SLIGHTS OF STEPHEN BREYER THIS MORNING, I AM NOT JOKING WITH YOU FOOLS.
Kavanaugh: "Looking at severability, proper remedy is to sever mandate. So the question is ... how do you get around those precedents, which seem on point here."
Texas SG: I get around them by relying on the text; AAPC (Kavanaugh opinion) recognized that inseverability clauses can be statements of intent, and ACA provision is functional inseverability clause.
Kavanaugh: No; inseverability clauses are usually clear.
Kavanaugh: No; inseverability clauses are usually clear.
Kavanaugh: Yeah, the text, I don't see it.
Texas SG: That would elevate form over substance; Congress said over and over that mandate is essential.
Texas SG: That would elevate form over substance; Congress said over and over that mandate is essential.
Kavanaugh: In 2017, did Congress want to preserve protections for people with preexisting conditions? Seems that way.
Texas SG: Look at the U.S. Code rather than get into what they were thinking/saying. Congress could have excised these findings; Congress has amended findings.
Texas SG: Look at the U.S. Code rather than get into what they were thinking/saying. Congress could have excised these findings; Congress has amended findings.
Barrett: Lets get back to individual standing. Why is their injury traceable to the US?
(Note: this question seems to be confused; officials sued are those who oversee ACA, and as Barrett notes you can't sue Congress; officials who oversee statute are proper defendants.)
(Note: this question seems to be confused; officials sued are those who oversee ACA, and as Barrett notes you can't sue Congress; officials who oversee statute are proper defendants.)
Barrett: lets talk about state standing; state sending out forms costs them $
Thankfully the Texas SG is wrapping up with this idiocy now.
Now up: Acting SG Wall
Chief (opens with standing): Your theory is that a plaintiff can challenge a provision on the ground that other provisions in the statute injure him. That greatly expands standing; this act alone has thousands of pages; now plaintiffs roam around & pick out a provision to attack?
Wall: Rare that there will be this kind of evidence about inseverability.
(Note: The plaintiffs evidence of inseverability here is really bad.)
(Note: The plaintiffs evidence of inseverability here is really bad.)
Thomas: At what stage should we confront inseverability? (This is also kind of what the Chief asked.) He says he thinks that inseverability is statutory construction appropriate for merits. Please comment.
WALL: Your theory is our theory.*
*It is not.
WALL: Your theory is our theory.*
*It is not.
Justice Breyer: I'm going to the merits "AND I HAVE A VERY DIFFERENT UNDERSTANDING THAN JUSTICE KAVANAUGH"
SGB: "Am I to understand that the SG went through the US Code and found no precatory language? That sounds like quite a job!"
SG: No, there's lots of precatory language
SGB: *WHIPS OUT DICTIONARY DEFINITION OF PRECATORY, AS SUPPLICATION/ENTREATY (BIG DICTIONARY ENERGY!!!!)
SG: No, there's lots of precatory language
SGB: *WHIPS OUT DICTIONARY DEFINITION OF PRECATORY, AS SUPPLICATION/ENTREATY (BIG DICTIONARY ENERGY!!!!)
"ALL OF THIS LANGUAGE IS PRECATORY, WHY IS THIS ONE PROVISION [IN THE ACA] DIFFERENT?"
Breyer: "So your entire argument is about shall versus should"?
"Have I ever said or have you ever should 'you shall do this but that is an entry or supplication'?"
SG Wall: No, that's a command backed by a penalty.
SGB: That's a much more organized family than mine.
SG Wall: No, that's a command backed by a penalty.
SGB: That's a much more organized family than mine.
(Note, the House, CA, & Breyer say ... this isn't backed by a penalty.)
There were some Alito questions.
Sotomayor: Do you concede that Congress can enact a delayed tax?
Sotomayor is not having the SG filibustering her.
SG Wall: Those could raise revenues.
Kagan -- does the SG say individual plaintiffs have standing?
SG: We haven't taken a position.
Kagan: I'm asking you for one. This is a ONE JUSTICE CVSG
Kagan -- does the SG say individual plaintiffs have standing?
SG: We haven't taken a position.
Kagan: I'm asking you for one. This is a ONE JUSTICE CVSG
Kagan now pressing on standing as severability theory/questions.
Gorsuch: Gives SG ability to say why there isn't a floodgates problem with standing as severability theory.
SG: It's rare to have an inseverability clause.
NOTE: THE PLAINTIFFS' ARGUMENTS FOR SEVERABILITY HERE ARE INSANE, AND THIS PROVES THE FLOODGATES PROBLEM!
SG: It's rare to have an inseverability clause.
NOTE: THE PLAINTIFFS' ARGUMENTS FOR SEVERABILITY HERE ARE INSANE, AND THIS PROVES THE FLOODGATES PROBLEM!
