Transcript: SCOTUS Affordable Care Act oral argument of Paul Clement on day 3
National Federation of Independent Business v. Health and Human Services
Transcript of the oral argument of Paul D. Clement before the U.S. Supreme Court on March 28, 2012:
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS
MR. CLEMENT: Mr. Chief Justice, and may it please the Court:
If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate.
Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.
You can — if you do not have the individual mandate to force people into the market, then community rating and guaranteed issue will cause the cost of premiums to skyrocket. We can debate the order of magnitude of that, but we can’t debate that the direction will be upward. We also can’t debate -
JUSTICE SOTOMAYOR: Counsel, that may well be true. The economists are going back and forth on that issue, and the figures vary from up 10 percent to up 30. We’re not in the habit of doing the legislative findings.
What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance — and we might or may not say that it’s unconstitutional — Massachusetts passed the mandatory coverage provision. But others adjusted some of the other provisions.
Why shouldn’t we let Congress do that, if in fact the economists prove — some of the economists prove right that prices will spiral? What’s wrong with leaving it to — in the hands of the people who should be fixing this, not us?
MR. CLEMENT: Well, a couple of questions - a couple of responses, Justice Sotomayor. First of all, I think that it’s very relevant here that Congress had before it as examples some of the States that had tried to impose guaranteed issue and community rating and did not impose an individual mandate. And Congress rejected that model. So, your question is quite right in saying that it’s not impossible to have guaranteed issue and community rating without an individual mandate. But it’s a model that Congress looked at and specifically rejected.
And then, of course, there’s Congress’s own finding, and their finding, of course — this is Finding (I), which is 43a of the Government’s brief, in the appendix. Congress specifically found that having the individual mandate is essential to the operation of guaranteed issue and community rating.
JUSTICE SOTOMAYOR: That’s all it said it was essential to. I mean, I’m looking at it. The exchanges. The State exchanges are information gathering facilities that tell insurers what the various policies actually mean. And that has proven to be a cost saver in many of the States who have tried it. So, why should we be striking down a cost saver -
MR. CLEMENT: Well -
JUSTICE SOTOMAYOR: — when, if what your argument is, was that Congress was concerned about costs rising?
MR. CLEMENT: Well -
JUSTICE SOTOMAYOR: Why should we assume they wouldn’t have passed an information -
MR. CLEMENT: I think a couple of things. One, you get — I mean, I would think you’re going have to take the bitter with the sweet. And if Congress - if we’re going to look at Congress’s goal of providing patient protection but also affordable care, we can’t — I don’t think it works to just take the things that save money and cut out the things that are going to make premiums more expensive. But at a minimum -
JUSTICE SOTOMAYOR: I guess, on the bottom line, is why don’t we let Congress fix it?
MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there’s going to be — if you strike down the mandate, there’s going to be something for Congress to do. The question is really what task do you want to give Congress? Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care? And I think it would be better in this situation
JUSTICE SOTOMAYOR: We’re not taking — if we strike down one provision, we’re not taking that power away from Congress. Congress could look at it without the mandatory coverage provision and say this model doesn’t work; let’s start from the beginning. Or it could choose to fix what it has. We’re not declaring — one portion doesn’t force Congress into any path.
MR. CLEMENT: And, of course, that’s right, Justice Sotomayor, and no matter what you do here, Congress will have the options available. So, if you -if you strike down only the individual mandate, Congress could say the next day, well, that’s the last thing we ever wanted to do; so, we’re going to strike down the rest of the statute immediately and then try to fix the problem. So, whatever you do, Congress is going to have options. The question is -
JUSTICE SCALIA: Well, there’s such a thing as legislative inertia, isn’t there?
MR. CLEMENT: Well, that’s exactly -
JUSTICE SCALIA: I mean -
MR. CLEMENT: — what I was going to say, Justice Scalia, which is I think the question for this Court is — we all recognize there’s legislative inertia. And then the question is what’s the best result in light of that reality?
JUSTICE SOTOMAYOR: Are you suggesting that we should take on more power to the Court?
MR. CLEMENT: No, I -
JUSTICE SOTOMAYOR: Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one, I think, would want.
MR. CLEMENT: And I agree. We’re simply asking this Court to take on, straight on, the idea of the basic remedial inquiry into severability which looks to the intent of the Congress -
JUSTICE SCALIA: Yes, I wanted to ask you about that. Why do we look to the — are you sure we look to the intent of the Congress? I thought that, you know, sometimes Congress says that these provisions will — all the provisions of this Act will be severable. We ignore that when the Act really won’t work, when the remaining provisions just won’t work. Now, how can you square that reality with the proposition that what we’re looking for here is what would this Congress have wanted?
MR. CLEMENT: Well, two responses, Justice Scalia: We can look at this Court’s cases on severability, and they all formulate the test a little bit differently.
JUSTICE SCALIA: Yes, they sure do.
MR. CLEMENT: But every one of them talks about congressional intent. But here’s the other answer
JUSTICE SCALIA: That’s true, but is it right?
MR. CLEMENT: It is right. And here’s how I would answer your question, which is, when Congress includes a severability clause, it’s addressing the issue in the abstract. It doesn’t say, no matter which provisions you strike down, we absolutely, positively want what’s left.
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?
JUSTICE SCALIA: When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.
MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it’s congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.
JUSTICE KAGAN: So Mr. Clement, let’s start with the text. And you suggest, and I think that there is — this is right, that there is a textual basis for saying that the guarantee issue and the community rating provisions are tied to the mandate. And you said — you pointed to where that was in the findings.
Is there a textual basis for anything else, because I’ve been unable to find one. It seems to me that if you look at the text, the sharp dividing line is between guarantee issue, community ratings, on the one hand, everything else on the other.
MR. CLEMENT: Well, Justice Kagan I would be delighted to take you through my view of the text and why there are other things that have to fall.
The first place I would ask you to look is finding J, which is on the same page 43A. And as I read that, that’s a finding that the individual mandate is essential to the operation of the exchanges.
But there are other links between guaranteed issue and community rating and the exchanges. And there I think it’s just the way that the exchanges are supposed to work, and the text makes this clear, is they are supposed to provide a market where people can compare community rated insurance. That’s what makes the exchanges function.
JUSTICE KAGAN: Although the exchanges function perfectly well in Utah, where there is no mandate. They function differently, but they function. And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf? And on something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won’t do everything that Congress envisioned.
MR. CLEMENT: Well, Justice Kagan, I think there are situations where half a loaf is actually worse, and I want to address that. But before I do it — more broadly. But before I do that, if I could stick with just the exchanges.
I do think the question that this Court is supposed to ask is not just whether they can limp along and they can operate independently, but whether they operate in the manner that Congress intended. And that’s where I think the exchanges really fall down. Because the vision of the exchanges was that if you got out of this current situation where health insurance is basically individualized price based on individualized underwriting. And you provide community rating, then it’s going to be very easy for people to see, okay, well, this is a silver policy, and this is a bronze policy, and this is a gold policy. And we can, you know, just pick which insurer provides what I think is going to be the best service based on those comparable provisions.
JUSTICE KAGAN: Mr. Clement, you just said something which you say a lot in your brief. You say the question is the manner in which it would have operated. And I think that’s not consistent with our cases. And I guess the best example would be Booker, where we decided not to sever provisions, notwithstanding that the sentencing guidelines clearly operate in a different manner now than they did when Congress passed them. They operate as advisory rather than mandatory.
MR. CLEMENT: But Justice Kagan, I mean, I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker. And the first part of it, which I think very much actually supports our point is where the majority rejects the approach of the dissent, which actually would have required nothing in the statute to have been struck, not a single word.
But nonetheless, this Court said, boy, if you do that, then all of the sentencing is basically going to be done by a combination of the juries and the prosecutors, and the judges are going to be cut out. And the Court said the one thing we know is that’s not the manner in which Congress thought that this should operate.
Now, later they make a different judgment about the — which particular provisions to cut out. But I do think Booker is consistent with this way of looking at it, and certainly consistent with Brock, the opinion that we rely on, because there the Court only reached that part of the opinion after they had already found that the must-hire provision operated functionally independent from the legislative veto, so -
JUSTICE GINSBURG: Mr. Clement, there is so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act, changes to Black Lung benefits, why make Congress redo those? I mean, it’s a question of whether we say everything you did is no good, now start from scratch, or to say, you know, there are many things in here that have nothing to do, frankly, with the affordable healthcare, and there are some that we think it’s better to let Congress to decide whether it wants them in or out.
So why should we say, it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.
MR. CLEMENT: Well, Justice Ginsburg, two kinds of responses to that. One, I do think there are some provisions that I would identify as being at the periphery of this statute, and I will admit that the case for severing those is perhaps the strongest.
But I do think it is fundamentally different, because if we were here arguing that some provision on the periphery of the statute, like the Biosimilars Act or some of the provisions that you’ve mentioned was unconstitutional, I think you’d strike it down and you wouldn’t even think hard about severability.
What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act. And then if you look at how they are textually interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid, if you follow that through what you end up with at the end of that process is just sort of a hollow shell. And at that point I think there is a strong argument for not — I mean, you can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.
CHIEF JUSTICE ROBERTS: Well, but it would have — it would have passed parts of the hollow shell. I mean, a lot of this is reauthorization of appropriations that have been reauthorized for the previous 5 or 10 years and it was just more convenient for Congress to throw it in in the middle of the 2700 pages than to do it separately. I mean, can you really suggest — I mean, they’ve cited the Black Lung Benefits Act and those have nothing to do with any of the things we are talking about.
MR. CLEMENT: Well, Mr. Chief Justice, they tried to make them germane. But I’m not here to tell you that — some of their — surely there are provisions that are just looking for the next legislative vehicle that is going to make it across the finish line and somebody’s going to attach it to anything that is moving. I mean, I’ll admit that.
But the question is when everything else from the center of the Act is interconnected and has to go, if you follow me that far, then the question is would you keep this hollowed-out shell?
JUSTICE SOTOMAYOR: Well, but it’s not -
JUSTICE KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical.
So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?
If you — suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test?
Because we don’t want to go into legislative history,that’s intrusive, so we ask whether or not an objective — as an objective rational matter one could function without — I still don’t know what the test is that we are supposed to apply. And this is the same question as Justice Scalia asked. Could you give me some help on that?
MR. CLEMENT: Sure. Justice Kennedy, the reality is I think this Court’s opinions have at various times applied both strains of the analysis.
JUSTICE KENNEDY: And which one — and what test do you suggest that we follow if we want to clarify our jurisprudence?
MR. CLEMENT: I’m — I’m a big believer in objective tests, Justice Kennedy. I would be perfectly happy with you to apply a more textually based objective approach. I think there are certain justices that are more inclined to take more of a peek at legislative history, and I think if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. But I am happy to focus the Court on the objective textual inquiry.
CHIEF JUSTICE ROBERTS: I don’t understand
JUSTICE KENNEDY: And that objective test is what?
MR. CLEMENT: Is whether the statute can operate in the manner that Congress — that Congress intended.
JUSTICE SOTOMAYOR: No statute can do that, because once we chop off a piece of it, by definition, it’s not the statute Congress passed. So it has to be something more than that.
MR. CLEMENT: Justice Sotomayor, every one of your cases, if you have a formulation for severability, if you interpret it woodenly it becomes tautological. And Justice Blackmun addressed this in footnote 7 of the Brock opinion that we rely on, where he says: Of course it’s not just — you know, it doesn’t operate exactly in the manner because it doesn’t have all the pieces, but you still make an inquiry as to whether when Congress links two provisions together and one really won’t work without the other -
JUSTICE SOTOMAYOR: So what is wrong with the presumption that our law says, which is we presume that Congress would want to sever? Wouldn’t that be the simplest, most objective test? Going past what Justice Scalia says we have done, okay, get rid of legislative intent altogether, which some of our colleagues in other contexts have promoted, and just say: Unless Congress tells us directly, it’s not severable, we shouldn’t sever. We should let them fix their problems.
You still haven’t asked — answered me why in a democracy structured like ours, where each branch does different things, why we should involve the Court in making the legislative judgment?
MR. CLEMENT: Justice Sotomayor let me try to answer the specific question and then answer the big picture question. The specific question is, I mean, you could do that. You could adopt a new rule now that basically says, look, we’ve severed -
JUSTICE SOTOMAYOR: It’s not a new rule. We presume. We’ve rebutted the presumption in some cases —
MR. CLEMENT: Right.
JUSTICE SOTOMAYOR: But some would call that judicial action.
MR. CLEMENT: I think in fairness, though, Justice Sotomayor, to get to the point you are wanting to get to, you would have to ratchet up that presumption a couple of ticks on the scale, because the one thing -
JUSTICE SOTOMAYOR: And what’s wrong with that?
MR. CLEMENT: Well, one thing that’s wrong with that, which is still at a smaller level, is that’s inconsistent with virtually every statement in every one of your severability opinions, which all talk about congressional intent.
JUSTICE KAGAN: Well, it’s not inconsistent with our practice, right, Mr. Clement? I mean, you have to go back decades and decades and decades, and I’m not sure even then you could find a piece of legislation that we refused to sever for this reason.
MR. CLEMENT: I don’t think that’s right, Justice Kagan. I think there are more recent examples.
A great example I think which sort of proves, and maybe is a segue to get to my broader point, is a case that involves a State statute, not a Federal statute, but I don’t think anything turns on that, is Randall against Sorrell, where this Court struck down various provisions of the Vermont campaign finance law. But there were other contribution provisions that were not touched by the theory that the Court used to strike down the contribution limits. But this Court at the end of the opinion said: There is no way to think that the Vermont legislator would have wanted these handful of provisions there on the contribution side, so we will strike down the whole thing.
And if I could make the broader point, I mean, I think the reason it makes sense in the democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. And a great example, if I dare say so, is Buckley. In Buckley this Court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures.
This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what’s left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are — you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.
JUSTICE KAGAN: Mr. Clement -
JUSTICE BREYER: Could I ask you one question, which is a practical question. I take as a given your answer to Justice Kennedy, you are saying let’s look at it objectively and say what Congress has intended, okay? This is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here’s the rest of it,you know, and when I look through the rest of it, I have all kinds of stuff in there. And I haven’t read every word of that, I promise. As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, there is the CLASS Act, etcetera.
What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven’t argued most of these. As I hear you now, you’re pretty close to the SG. I mean, you’d like it all struck down, but we are supposed to apply the objective test. I don’t know if you differ very much.
So what do you propose that we do other than spend a year reading all this and have you argument all this?
MR. CLEMENT: Right. What I would propose is the following, Justice Breyer, is you follow the argument this far and then you ask yourself whether what you have left is a hollowed-out shell or whether -
JUSTICE BREYER: I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation, the CLASS Act, those have nothing to do with the stuff that we’ve been talking about yesterday and the day before, okay?
So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own. The Indian thing about helping the underserved Native Americans, all that stuff has nothing to do. Black lung disease, nothing to do with it, okay?
So that’s — do you know what you have there? A total off-the-cuff impression. So that’s why I am asking you, what should I do?
MR. CLEMENT: What you should do, is let me say the following, which is follow me this far, which is mandatory, individual mandate is tied, as the government suggests, to guaranteed-issue and community rating, but the individual mandate, guaranteed-issue, and community rating together are the heart of this Act. They are what make the exchanges work.
The exchanges in turn are critical to the tax credits, because the amount of the tax credit is key to the amount of the policy price on the exchange. The exchanges are also key to the employer mandate, because the employer mandate becomes imposed on an employer if one of the employees gets insurance on the exchanges.
But it doesn’t stop there. Look at the Medicare provision for DISH hospitals, okay? These are hospitals that serve a disproportionate share of the needy. This isn’t in Title I. It’s in the other part that you had in your other hand. But it doesn’t work without the mandate, community rating and guaranteed-issue.
JUSTICE ALITO: Well, can I ask you this, Mr. Clement.
MR. CLEMENT: Sure.
JUSTICE ALITO: What would your fallback position be if we don’t accept the proposition that if the mandate is declared unconstitutional, the rest of the Act, every single provision, has to fall? Other proposed — other dispositions have been proposed.
There’s the Solicitor General’s disposition, the recommended disposition to strike down the guaranteed issue and community rating provisions. One of the - one amicus says strike down all of Title I, another says strike down all of Title I and Title II.
What — what would you suggest?
MR. CLEMENT: Well, I — I think what I would suggest, Justice Alito — I don’t want to be unresponsive — is that you sort of follow the argument through and figure out what in the core of the Act falls. And then I guess my fallback would be if what’s left is a hollowed-out shell, you could just leave that standing. If you want a sort of practical answer, I mean, I do think you could just — you know, you could use Justice Breyer’s off-the-cuff as a starting point and basically say, you know, Title I and a handful of related provisions that are very closely related to that are really the heart of the Act -
CHIEF JUSTICE ROBERTS: Well, that’s -
MR. CLEMENT: — the bigger volume — on the other hand, I mean, you could strike one and leave the other, but at a certain point — I’m sorry, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Finish your certain point.
MR. CLEMENT: At a certain point, I just think that, you know, the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate. If it’s so easy to have that other big volume get reenacted, they can do it in a couple of days, it won’t be a big deal. If it’s not, because it’s very -
MR. CLEMENT: — well, but — I mean, you can laugh at me if you want, but the point is, I rather suspect that it won’t be easy. Because I rather suspect that if you actually dug into that, there’d be something that was quite controversial in there and it couldn’t be passed quickly -
CHIEF JUSTICE ROBERTS: But the reality -
MR. CLEMENT: — and that’s our whole point.
CHIEF JUSTICE ROBERTS: The reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.
Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.
MR. CLEMENT: Well, maybe that’s right, Mr. Chief Justice. And I don’t want to, I mean, spend all my time on — fighting over the periphery, because I do think there are some provisions that I think you would make, as an exercise of your own judgment, the judgment that once you’ve gotten rid of the core provisions of this Act, that you would then decide to let the periphery fall with it.
But if you want to keep the periphery, that’s fine. What I think is important, though, as to the core provisions of the Act, which aren’t just the mandate community rating and guaranteed issue, but include the exchanges, the tax credit, Medicare and Medicaid — as to all of that, I think you do want to strike it all down to avoid a redux of Buckley.
If I could reserve the remainder of my time.
CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS
JUSTICE SOTOMAYOR: — amici’s point: he says that Congress didn’t go into this Act to impose minimum coverage. They went into the Act to have a different purpose, i.e., to get people coverage when they needed it, to increase coverage for people, but this is only a tool. But other States — going back to my original point, that there are other tools besides minimum coverage that Congress can achieve the same goals. So if we strike just a tool, why should we strike the whole Act, when Congress has other tools available?
MR. CLEMENT: Mr. Chief Justice, I will make four points in rebuttal, but I will start with Justice Sotomayor’s question; which is to simply say this isn’t just a tool; it’s the principal tool. Congress identified it as an essential tool. It’s not just a tool to make it work. It’s a tool to pay for it, to make it affordable. And again, that’s not my characterization; that’s Congress’s characterization in subfinding I on page 43A of the government’s brief.
Now, that bring me to my first point in rebuttal, which is Mr. Kneedler says, quite correctly tells this Court don’t look at the budgetary implications. Well, the problem with that, though, is once it’s common ground that the individual mandate is in the statute at least in part to make community rating and guaranteed-issue affordable, that really is all you have to identify. That establishes the essential link that it’s there to pay for it. You don’t have to figure out exactly how much that is and which box — I mean, it clearly is a substantial part of it, because what they were trying to do is take healthy individuals and put them into the risk pool, and this is quoting their finding, which is in order — they put people into the market “which will lower premiums.” So that’s what their intent was.
So you don’t have to get to the — the final number. You know that’s what was going on here, and that’s reason alone to sever it.
Now, the government — Mr. Kneedler also says there is an easy dividing line between what they want to keep and what they want to dish out. The problem with that is that, you know, you — you read their brief and you might think, oh, there is a guaranteed-issue and a community rating provision subtitle in the bill. There is not.
To figure out what they are talking about you have to go to page 6 of their brief, of their opening severability brief, where they tell you what is in and what’s out. And the easy dividing line they suggest is actually between 300ga-1 and 300ga-2, because on community rating they don’t — they say that a-1 goes, but then they say a-2 has to stay, because that’s the way that you’ll have some sort of, kind of Potemkin community rating for the exchanges. But if you actually look at those provisions, a-2 makes all these references to a-1. It just doesn’t work.
Now, in getting back to the — an inquiry that I think this Court actually can approach, is to look at what Congress was trying to do, you need look no further than look than the title of this statute: Patient Protection and Affordable Care. I agree with Mr. Farr that community rating and guaranteed-issue were the crown jewels of this Act. They were what was trying to provide patient protection. And what made it affordable? The individual mandate. If you strike down guaranteed-issue, community rating and the individual mandate, there is nothing left to the heart of the Act.
And that takes me to my last point, which is simply this Court in Buckley created a halfway house, and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t. And for — for 40 years they worked in that halfway house.
Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.
CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement.
- WhatTheFolly.com: Transcript: SCOTUS Affordable Care Act oral argument of Paul Clement on day 3
- WhatTheFolly.com: Transcript: SCOTUS Affordable Care Act oral argument of Edwin Kneedler on day 3
- WhatTheFolly.com: Transcript: SCOTUS Affordable Care Act oral argument of H. Bartow Farr III on day 3
- SupremeCourt.gov: National Federation of Independent Business v. Department of Health and Human Services – petition for a writ of certiorari (PDF)
- SupremeCourt.gov: National Federation of Independent Business v. Department of Health and Human Services – appendix (PDF)
- SupremeCourt.gov: National Federation of Independent Business v. Department of Health and Human Services – brief for HHS (PDF)
- Justice.gov: Solicitor General Donald B. Verrilli, Jr.
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