Transcript: SCOTUS Affordable Care Act oral argument of Edwin Kneedler on day 3

National Federation of Independent Business v. Health and Human Services 

Transcript of the oral argument of Edwin S. Kneedler before the U.S. Supreme Court on March 28, 2012: 

ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE RESPONDENTS


MR. KNEEDLER: Thank you, Mr. Chief Justice, and may it please the Court:

There should be no occasion for the Court in this case to consider issues of severability, because as we argue, the — the minimum coverage provision is fully consistent with Article I of the Constitution. But if the Court were to conclude otherwise, it should reject Petitioners’ sweeping proposition that the entire Act must fall if this one provision is held unconstitutional.

As an initial matter, we believe the Court should not even consider that question. The vast majority of the provisions of this Act do not even apply to the Petitioners, but instead apply to millions of citizens and businesses who are not before the Court -­

CHIEF JUSTICE ROBERTS: How does your proposal actually work? Your idea is that, well, they can take care of it themselves later. I mean, do you contemplate them bringing litigation and saying — I guess the insurers would be the most obvious ones -­ without — without the mandate, the whole thing falls apart, and we’re going to bear a greater cost, and so the rest of the law should be struck down.

And that’s a whole other line of litigation?

MR. KNEEDLER: Well, I — I think the continuing validity of any particular provision would arise in litigation that would otherwise arise under that provision by parties who are actually -­

CHIEF JUSTICE ROBERTS: But what cause of action is it? I’ve never heard of a severability cause of action.

MR. KNEEDLER: Well, in the first place, I don’t — the point isn’t that there has to be an affirmative cause of action to decide this. You could — for example, to use the Medicare reimbursement issue is one of the things that this Act does is change Medicare reimbursement rates. Well, the place where someone adjudicates the validity of Medicare reimbursement rates is through the special statutory review procedure for that. And the same thing is true of the Anti-Injunction Act -­

JUSTICE SCALIA: Mr. Kneedler, there are some provisions which nobody would have standing to challenge. If the provision is simply an expenditure of Federal money, it doesn’t hurt anybody except the taxpayer, but the taxpayer doesn’t have standing. That — that just continues.

Even though it is — it should — it is so closely allied to what’s been struck down that it ought to go as well. But nonetheless, that has to continue because there’s nobody in the world that can challenge it.

Can that possibly be the law?


MR. KNEEDLER: I think that proves our point, Justice Scalia. This Court has repeatedly said that just because there’s — no one may have standing to challenge — and particularly like tax credits or taxes which are challenged only after going through the Anti-Injunction Act, just because no one has standing doesn’t mean that someone must. But beyond that -­

JUSTICE SCALIA: But those are provisions that have been legitimately enacted. The whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted.

You can’t compare that to — to cases dealing with a statute that nobody denies is constitutional.

MR. KNEEDLER: This case is directly parallel to the Printz case, in our view. In that case, the Court struck down several provisions of the Brady Act, but went on to say it had no business addressing the severability of other provisions that did not apply to the people before whom -­

JUSTICE SOTOMAYOR: But -­

JUSTICE BREYER: What he’s thinking of is this: I think Justice Scalia is thinking, I suspect, of — imagine a tax which says, this tax, amount Y, goes to purpose X, which will pay for half of purpose X. The other half will come from the exchanges somehow. That second half is unconstitutional. Purpose X can’t possibly be carried out now with only half the money. Does the government just sit there collecting half the money forever because nobody can ever challenge it? You see, there — if it were inextricably connected, is it enough to say, well, we won’t consider that because maybe somebody else could bring that case and then there is no one else? I mean, is that -­

MR. KNEEDLER: Yes, we think that is the proper way to proceed. Severability -­

JUSTICE GINSBURG: Mr. Kneedler, it’s not a choice between someone else bringing the case and a law staying in place. And what we’re really talking about, as Justice Sotomayor started this discussion, is who is the proper party to take out what isn’t infected by the Court’s holding — with all these provisions where there may be no standing, one institution clearly does have standing, and that’s Congress.

And if Congress doesn’t want the provisions that are not infected to stand, Congress can take care of it.

It’s a question of which — which side -­ should the Court say, we’re going to wreck the whole thing, or should the Court leave it to Congress?

MR. KNEEDLER: We think the Court should leave it to Congress for two reasons. One is the pointI’m making now about justiciability, or whether the Court can properly consider it at all. And the second is, we think only a few provisions are inseverable from the minimum coverage provision.

I just would like to -­

CHIEF JUSTICE ROBERTS: Before you go, Mr. Kneedler, I’d like your answer to Justice Breyer’s question.

I think you were interrupted before you had a chance -­

MR. KNEEDLER: Yes. No, we believe that in that case, the tax — the tax provision should not be struck down. In the first place, the Anti-Injunction Act would bar a direct suit to challenge it. It would be very strange to allow a tax to be struck down on the basis of a severability analysis. Severability arises in a case only where it’s necessary to consider what relief a party before the Court should get. The only party -­

JUSTICE ALITO: Suppose that there was -­ suppose there was a non-severability provision in this Act. If one provision were to be held unconstitutional, then every single — someone would have to bring a separate lawsuit challenging every single other provision in the Act and say, well, one fell and theCongress said it’s all — it’s a package, it can’t be separated.

That’s your position?

MR. KNEEDLER: The fact that — that such a clause might make it easy doesn’t change the point. Article III jurisdictional problems apply to easy questions as well as hard questions. If I could just -­

JUSTICE KENNEDY: But there’s no Article III jurisdictional problem in Justice Alito’s hypothetical, that this is a remedial exercise of the Court’s power to explain the consequences of its judgment in this case.

MR. KNEEDLER: But this Court had said that one has to have standing for every degree of relief that is sought. That was in Davis, that was Los Angeles v. Lyons.

JUSTICE SCALIA: Mr. Kneedler -­

MR. KNEEDLER: — Daimler/Chrysler -­

JUSTICE SCALIA: — don’t you think it’s unrealistic to say leave it to Congress, as though you’re sending it back to Congress for Congress to consider it dispassionately: On balance, should we have this provision or should we not have provision? That’s not what it’s going to be. It’s going to be these provisions are in effect; even though you — a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the — of the Act, which has now been cut out; but nonetheless these provisions are the law, and you have to get the votes to overturn them.

That’s an enormously different question from whether you get the votes initially to put them into the law.

What — there is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it — what should I say — in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?

MR. KNEEDLER: We think, as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief. Here the only -­

JUSTICE KENNEDY: But when you say “judicial restraint” -­

JUSTICE SOTOMAYOR: Mr. Kneedler, would you please -­

CHIEF JUSTICE ROBERTS: Justice Kennedy.

JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.

By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole.

MR. KNEEDLER: I — I think not, Justice -­

JUSTICE KENNEDY: I just don’t accept the premise.

MR. KNEEDLER: I think not, Justice Kennedy, and then I’ll move on.

But this is exactly the situation in Printz. The Court identified the severability questions that were — that were briefed before the Court as important ones but said that they affect people who are — rights and obligations of people who are not before the Court.

JUSTICE SOTOMAYOR: Mr. Kneedler, move away from the issue of whether it’s a standing question or not.

MR. KNEEDLER: Right.

JUSTICE SOTOMAYOR: Make the assumption that’s an — that this is an issue of the Court’s exercise of discretion, because the last two questions had to do with what’s wise for the Court to do, not whether it has power to do it or not.

MR. KNEEDLER: Right. That -­

JUSTICE SOTOMAYOR: So, let’s move beyond the power issue, which your answers have centered on, and give me a sort of policy. And I know that’s a -­that’s a bugaboo word sometimes, but what should guide the Court’s discretion?

MR. KNEEDLER: Well, we think that matters of justiciability do blend into -­

JUSTICE SOTOMAYOR: Would you please -­

MR. KNEEDLER: No, I understand.

JUSTICE SOTOMAYOR: I’ve asked you three times to move around that.

MR. KNEEDLER: — blend into — blend into discretion and, in turn, blend into the merits of the severability question. And as to that, just to answer a question that several Justices have asked, we think that severability is a matter of statutory interpretation. It should be resolved by looking at the structure and the text of the Act, and the Court may look at legislative history to figure out what the text and structure mean with respect to severability. We don’t

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

(Laughter.)

JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?

(Laughter.)

JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

MR. KNEEDLER: Well -­

JUSTICE SOTOMAYOR: I thought the simple answer was you don’t have to because -­

MR. KNEEDLER: Well, that is — that is the -­

JUSTICE SOTOMAYOR: — what we have to look at is what Congress said was essential, correct?

MR. KNEEDLER: That is correct, and I’d also like to — going — I just want to finish the thought I had about this being a matter of statutory interpretation. The Court’s task, we submit, is not to look at the legislative process to see whether the bill would have been — would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count. That is not the Court’s function.

JUSTICE KAGAN: And, Mr. Kneedler, that would be a revolution -­

MR. KNEEDLER: Yes.

JUSTICE KAGAN: — in our severability law, wouldn’t it?

MR. KNEEDLER: It would.

JUSTICE KAGAN: I mean, we have never suggested that we’re going to say, look, this legislation was a brokered compromise, and we’re going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.

Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.

(Laughter.)

MR. KNEEDLER: I think — I think that -­

JUSTICE SCALIA: I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.

(Laughter.)

MR. KNEEDLER: I think that — I think that’s exactly right. As I said, it is a question of statutory interpretation.

CHIEF JUSTICE ROBERTS: Well, how is that -­ what’s exactly right? It’s a question of statutory interpretation; that means you have to go through every line of the statute. I haven’t heard your answer to Justice Scalia’s question yet.

MR. KNEEDLER: Well, I think in this case there is an easy answer, and that is, Justice Kagan pointed out that, that the Act itself creates a sharp dividing line between the minimum coverage provision -­ the package of — of reforms: the minimum coverage provision along with the guaranteed issue and community rating. That is one package that Congress deemed essential.

CHIEF JUSTICE ROBERTS: How do you know that? Where is this line? I looked through the whole Act; I didn’t read — well -­

MR. KNEEDLER: It is in -­

CHIEF JUSTICE ROBERTS: Where is the sharp line?

MR. KNEEDLER: It is in Congress’s findings that the — that the minimum coverage provision -­without it, the Court — the Congress said, in Finding (I), without that provision, people would wait to get insurance, and therefore — and cause all the adverse selection problems that arise.

CHIEF JUSTICE ROBERTS: No, no. That -­that makes your case that the one provision should fall if the other does. It doesn’t tell us anything about all the other provisions.

MR. KNEEDLER: Well, I — I think — I think it does, because Congress said it was essential to those provisions, but it conspicuously did not say that it was essential to other provisions.

CHIEF JUSTICE ROBERTS: Well -­

JUSTICE ALITO: May I ask you about the argument that’s made in the economists’ amicus brief?

They say that the insurance reforms impose 10-year costs of roughly $700 billion on the insurance industry, and that these costs are supposed to be offset by about 350 billion in new revenue from the individual mandate and 350 billion from the Medicaid expansion.

Now, if the 350 billion — maybe you’ll disagree with the numbers, that they’re fundamentally wrong; but assuming that they’re in the ballpark, if the 350 million from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the — in the hole for $350 billion over 10 years?

MR. KNEEDLER: I don’t — I mean, first of all, for the Court to go beyond text and legislative history to try to figure out how the finances of the bill operate, it’s like being the budget committee. But — but we think the economists had added up the figures wrong. If there’s Medicaid expansion, the insurance -­and the insurance companies are involved in that, they’re going to be reimbursed for the -­

CHIEF JUSTICE ROBERTS: But what if there isn’t Medicaid expansion? We’ve talked about the individual mandate, but does the Government have a position on what should happen if the Medicaid expansion is struck down?

MR. KNEEDLER: We don’t — we don’t think that that would have any effect. And that could be addressed in the next argument. But we don’t think that would have any effect on the — on the rest of the — on the rest of the Act.

CHIEF JUSTICE ROBERTS: So, did — the Government’s position is that if Medicaid expansion is struck down, the rest of the Act can operate -­

MR. KNEEDLER: Yes.

CHIEF JUSTICE ROBERTS: — without it.

MR. KNEEDLER: Yes. It’s — in the past, Congress has expanded Medicaid coverage without there being — it’s done it many times without there being a minimum coverage provision -­

JUSTICE KENNEDY: But I still don’t understand where you are with the answer to Justice Alito’s question.

Assume that there is a — a substantial probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court’s function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?

MR. KNEEDLER: Well, we don’t think it’s in the Court’s place to look at the — at the budgetary implications, and we also -­

JUSTICE KENNEDY: But isn’t that — isn’t that the point, then, why we should just assume that it is not severable?

MR. KNEEDLER: No.

JUSTICE KENNEDY: If we — if we lack the competence to even assess whether there is a risk, then isn’t this an awesome exercise of judicial power?

MR. KNEEDLER: No, I don’t -­

JUSTICE KENNEDY: To say we’re doing something and we’re not telling you what the consequences might be?

MR. KNEEDLER: No, I don’t think so, because when you — when you’re talking about monetary consequences, you’re looking through the Act, you’re looking behind the Act, rather than — the Court’s function is to look at the text and structure of the Act and what the substantive provisions of the Act themselves mean. And if I could go past -­

JUSTICE SCALIA: Mr. Kneedler, can I — can you give us a prior case in — that resembles this one in which we are asked to strike down what the other side says is the heart of the Act, and yet leave in — as you request, leave in effect the rest of it? Have we ever — most of our severability cases, you know, involve one little aspect of the Act. The question is whether the rest. When have we ever really struck down what was the main purpose of the Act, and left the rest in effect?

MR. KNEEDLER: I think Booker is the best example of that. In Booker the mandatory sentencing provisions were central to the act, but the Court said, Congress would have preferred a statute without the mandatory provision in the Act, and the Court struck that, but the rest of the sentencing guidelines remained.

JUSTICE SCALIA: I think the reason — the reason the majority said that was that they didn’t think that what was essential to the Act was what had been stricken down, and that is the ability of the judge to say on his own what — what the punishment would be. I don’t think that’s a case where we struck — where we excised the heart of the statute.

You have another one?

MR. KNEEDLER: There is no example -­

JUSTICE SCALIA: There is no example. This is really -­

MR. KNEEDLER: — to our — that we have found that suggests the contrary.

JUSTICE SCALIA: This is really a case of first impression. I don’t know another case where we have been confronted with this — with this decision. Can you take out the heart of the Act and leave everything else in place?

MR. KNEEDLER: I would like to go to the heart of the Act point in a moment. But what I’d like to say is this is a huge act with many provisions that are completely unrelated to market reforms and operate in different ways. And we think it would be extraordinary in this extraordinary act to strike all of that down because there are many provisions and it would be too hard to do it.

JUSTICE BREYER: I mean, I think it’s not uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do with the other titles. That’s a common thing. And you’re saying you’ve never found an instance where they are all struck out when they have nothing to do with each other.

My question is, because I hear Mr. Clement saying something not too different from what you say. He talks about things at the periphery. We can’t reject or accept an argument on severability because it’s a lot of work for us. That’s beside the point. But do you think that it’s possible for you and Mr. Clement, on exploring this, to get together and agree on -­

(Laughter)

JUSTICE BREYER: — I mean, on a list of things that are, in both your opinions, peripheral.

Then you would focus on those areas where one of you thinks it’s peripheral and one of you thinks it’s not peripheral. And at that point, it might turn out to be far fewer than we are currently imagining, at which point we could hold an argument or figure out some way or somebody hold an argument and try to — try to get those done.

Is that a pipe dream or is that a -­

MR. KNEEDLER: I — I just don’t think that is realistic. The Court would be doing it without the parties, the millions of parties -­

JUSTICE SCALIA: You can have a conference committee report afterwards, maybe.

(Laughter.)

MR. KNEEDLER: No, I just — it just is not something that a court would ordinarily do. But I would like -­

JUSTICE SOTOMAYOR: Could you get back to the argument of — of the heart?

MR. KNEEDLER: Yes.

JUSTICE SOTOMAYOR: Striking down the heart, do we want half a loaf or a shelf. I think those are the two analogies -­

MR. KNEEDLER: Right. And — and I would like to discuss it again in terms of the text and structure of the Act. We have very important indications from the structure of this Act that the whole thing is not supposed to fall.

The most basic one is, the notion that Congress would have intended the whole Act to fall if there couldn’t be a minimum coverage provision is refuted by the fact that there are many, many provisions of this Act already in effect without a minimum coverage provision. Two point — 2 and-a-half million people under 26 have gotten insurance by one of the insurance requirements. Three point two billion dollars -­

JUSTICE SCALIA: In anticipation of the minimum coverage. That’s going to bankrupt the insurance companies, if not the States, unless this minimum coverage provision comes into effect.

MR. KNEEDLER: There is no reason to think it’s going to — it’s going to bankrupt anyone. The costs will be set to cover those — to cover those amounts.

JUSTICE SOTOMAYOR: I thought that the 26-year-olds were saying that they were healthy and didn’t need insurance yesterday. So today they are going to bankrupt the -­

MR. KNEEDLER: Two and a half million people would be thrown off the insurance roles if the Court were to say that. Congress made many changes to Medicare rates that have gone into effect. For Congress — for the courts to have to unwind millions of Medicare reimbursement rates. Medicare has covered 32 million insurance — preventive care visits by patients as a result of this Act.

CHIEF JUSTICE ROBERTS: All of that was based on the assumption that the mandate was constitutional. And if — that certainly doesn’t stop us from reaching our own determination on that.

MR. KNEEDLER: No, but what I’m saying is it’s a question of legislative intent, and we have a very fundamental indication of legislative intent that Congress did not mean the whole Act to fall if -­ without the minimum coverage provision, because we have many provisions that are operating now without that.

But there’s a further indication about why the line should be drawn where I’ve suggested, which is the package of these particular provisions. All the other provisions of the Act would continue to advance Congress’s goal, the test that was articulated in Booker, but it’s been said in Regan and other cases. You look to whether the other provisions can continue to advance the purposes of the Act.

Here they unquestionably can. The public health — the broad public health purposes of the Act that are unrelated to the minimum coverage provision, but also that the other provisions designed to enhance access to affordable care. The employer responsibility provision, the credit for small businesses, which is already in effect, by the way, and affecting many small businesses -­

JUSTICE SCALIA: But many people might not — many of the people in Congress might not have voted for those provisions if the central part of this statute was not adopted.

MR. KNEEDLER: But that -­

JUSTICE SCALIA: I mean, you know, you’re -­ to say that we’re effectuating the intent of Congress is just unrealistic. Once you’ve cut the guts out of it, who knows, who knows which of them were really desired by Congress on their own and which ones weren’t.

MR. KNEEDLER: The question for the Court is Congress having passed the law by whatever majority there might be in one house or the other, Congress having passed the law, what at that point is — is the legislative intent embodied in the law Congress has actually passed?

CHIEF JUSTICE ROBERTS: Well, that’s right. But the problem is, straight from the title, we have two complementary purposes, patient protection and affordable care. And you can’t look at something and say this promotes affordable care, therefore, it’s consistent with Congress’s intent. Because Congress had a balanced intent. You can’t look at another provision and say this promotes patient protection without asking if it’s affordable.

So, it seems to me if you ask what is going to promote Congress’s purpose, that’s just an inquiry that you can’t carry out.

MR. KNEEDLER: No, with respect, I disagree, because I think it’s evident that Congress’s purpose was to expand access to affordable care. It did it in discrete ways. It did it by the penalty on employers that don’t — that don’t offer suitable care. It did it by offering tax credits to small employers. It did it by offering tax credits to purchasers. All of those are a variety of ways that continue to further Congress’s goal. And most of all, Medicaid, which is — which is unrelated to the — to the private insurance market altogether.

And in adopting those other provisions governing employers and whatnot, Congress built on its prior experience of using the tax code, which it is -­for a long period of time, Congress has subsidized –

JUSTICE KENNEDY: I don’t quite understand about the employers. You’re — you are saying Congress mandated employers to buy something that Congress itself has not contemplated? I don’t understand that.

MR. KNEEDLER: No. Employer coverage — 150 million people in this country already get their insurance through — through their employers. What Congress did in seeking to augment that was to add a provision requiring employers to purchase insurance -­

JUSTICE KENNEDY: Based on the assumption that the cost of those policies would be lowered by certain provisions which are, by hypothesis — we are not sure — by hypothesis, are in doubt.

MR. KNEEDLER: No, I — I think it’s — any cost assumptions — there is no indication that Congress made any cost assumptions, but there is no reason to think that the individual — that the individual market, which is where the minimum coverage provision is directed, would affect that.

I would like to say — I would point out why the other things would advance Congress’s goal. The point here is that the package of three things would be contrary — would run contrary to Congress’s goal if you took out the minimum coverage provision. And here’s why — and this is reflected in the findings.

If you take out minimum coverage, but leave in the guaranteed issue and community rating, you will make matters worse. Rates will go up, and people will be less — fewer people covered in the individual market.

JUSTICE ALITO: Well, if that is true, what is the difference between guaranteed issue and community rating provisions, on the one hand, and other provisions that increase costs substantially for insurance companies?

For example, the tax on high cost health plans, which the economists in the amicus brief said will cost $217 billion over 10 years?

MR. KNEEDLER: Those are — what Congress — Congress did not think of those things as balancing insurance companies. Insurance companies are participants in the market for Medicaid and — and other things.

JUSTICE KENNEDY: But you are saying we have — we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito’s question suggests we must make.

MR. KNEEDLER: Well -­

JUSTICE KENNEDY: I just don’t understand your position.

MR. KNEEDLER: — that’s because — that’s because I think this Court’s function is to look at the text and structure and the legislative history of the law that Congress enacted, not the financial — not a financial balance sheet, which doesn’t appear anywhere in the law. And just -­

JUSTICE GINSBURG: You are relying on Congress’s quite explicitly tying these three things together.

MR. KNEEDLER: We do. That’s — that’s -­ and it’s not just the text of the act, but the background of the act, the experience in the state, the testimony of the National Association of Insurance Commissioners.

That’s the — that’s the problem Congress was addressing. There was a — there was — a shifting of present actuarial risks in that market that Congress wanted to correct. And if you took the minimum coverage provision out and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks an additional one because the uninsured would know that they would have guaranteed access to insurance whenever they became sick. It would make the — it would make the adverse selection in that market problem even worse. And so what — and Congress, trying to come up with a market-based solution to control rates in that market, has adopted something that would — that would work to control costs by guaranteed-issue and community-rating; but, if you — if — if you take out the minimum coverage, that won’t work. That was Congress’s assumption, again, shown by the text and legislative history of this provision. And that’s why we think those things rise or fall in a package because they cut against what Congress was trying to do.

All of the other provisions would actually increase access to affordable care and would have advantageous effects on price. Again, Congress was invoking its traditional use of the tax code, which has long subsidized insurance through employers, has used that to impose a tax penalty on employers, to give tax credits. This is traditional stuff that Congress has done.

And the other thing Congress has done, those preexisting laws had their own protections for guaranteed-issue and community-rating. Effectively, within the large employer plans, they can’t discriminate among people, they can’t charge different rates. What Congress was doing, was doing that in the other market. If it can’t, that’s all that should be struck from the act.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Kneedler.

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