WEBVTT - Justices Signal Obamacare Will Survive 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.000 --> 0:00:11.600 We will hear argument this morning in case California versus Texas. 0:00:12.119 --> 0:00:14.640 In the most high stakes case of the term, the 0:00:14.800 --> 0:00:17.600 justice is considered the fate of the Affordable Care Act, 0:00:17.760 --> 0:00:21.040 the landmark law better known as Obamacare, that provides health 0:00:21.079 --> 0:00:24.520 insurance to twenty million people. From the oral arguments, it 0:00:24.560 --> 0:00:27.360 appeared that the law would survive the challenge, but the 0:00:27.480 --> 0:00:31.560 question was how on what grounds? First, the justices have 0:00:31.640 --> 0:00:34.279 to decide whether the challengers even have a legal right 0:00:34.360 --> 0:00:38.120 to sue, called standing, and Chief Justice John Roberts and 0:00:38.240 --> 0:00:42.640 Justices Clarence Thomas and Brett Kavanaugh posed several hypotheticals to 0:00:42.720 --> 0:00:47.559 determine this. Let's say Congress passes a law saying everybody 0:00:47.600 --> 0:00:50.080 has to mow their lawn once a week. Uh. And 0:00:50.120 --> 0:00:52.320 they even make a lot of findings about why that's 0:00:52.320 --> 0:00:55.160 a good thing. You know, it makes the country look neater, 0:00:55.320 --> 0:00:56.960 you get fresh air if you have to do that, 0:00:57.680 --> 0:01:01.840 supports the lawnmower business. Um. And but the fine for 0:01:01.960 --> 0:01:06.400 violating it is zero zero dollars. Um, do they have standing? 0:01:07.880 --> 0:01:11.840 I assume that in most places there is no penalty 0:01:12.040 --> 0:01:16.760 for wearing a face math or a mask during covid um, 0:01:17.120 --> 0:01:19.960 but there is some degree of approbrium if one does 0:01:20.000 --> 0:01:24.280 not wear it in certain settings. Suppose Congress passed the 0:01:24.360 --> 0:01:27.360 law requiring every American who lives in a house to 0:01:27.560 --> 0:01:30.680 fly an American flag in front of the house. There's 0:01:30.720 --> 0:01:34.120 no penalty. My guest is Abby Gluck, a professor at 0:01:34.200 --> 0:01:36.720 Yale Law School and the founding faculty director of the 0:01:36.760 --> 0:01:40.199 Solomon Center for Health Law and Policy. Happy Let's start 0:01:40.240 --> 0:01:44.120 with the basics. Why is Obamacare before the Supreme Court again? 0:01:44.959 --> 0:01:48.040 So this is actually the seventh time the Affordable Care 0:01:48.080 --> 0:01:50.520 Act has been in a Supreme Court in eight years, 0:01:50.760 --> 0:01:53.400 and it is the third time the Supportable Care Act 0:01:53.400 --> 0:01:56.480 has sased what we call an existential challenge, a challenge 0:01:56.520 --> 0:01:59.360 to its entire being. And the reason the case is 0:01:59.400 --> 0:02:04.600 here is that Congress in decided, after seventy failed attempts 0:02:04.600 --> 0:02:06.720 to appeal and replace the laws, that it was able 0:02:06.760 --> 0:02:10.200 to do one thing, one symbolic thing, and that is 0:02:10.480 --> 0:02:15.000 zero out the penalty associated with the insurance purchase requirements, 0:02:15.000 --> 0:02:18.600 the infamous mandates, the insurance mandate. This, as you might remember, 0:02:18.680 --> 0:02:21.799 had been the focal point of the first litigation long 0:02:21.840 --> 0:02:24.320 been held up there as a symbol of what anti 0:02:24.400 --> 0:02:28.720 affordable tax folks really don't like. So Congress zeros out 0:02:28.760 --> 0:02:31.680 the penalty. The mandate is no longer enforceable, and in 0:02:31.720 --> 0:02:34.560 the real world that really has relatively little effects. And 0:02:34.560 --> 0:02:36.680 the reason that has relatively little effect is that the 0:02:36.720 --> 0:02:39.720 mandate had never really been fully enforced, the markets that 0:02:39.800 --> 0:02:42.920 acclimated to the mandate not existing, and so by the 0:02:42.919 --> 0:02:45.000 time the mandate is actually as he wrote out, the 0:02:45.000 --> 0:02:47.760 effect on the market is relatively little. So how do 0:02:47.880 --> 0:02:50.720 we get to the court? Well, eighteen Red States of 0:02:50.720 --> 0:02:53.480 the Department of Justice took that argument one step further 0:02:53.680 --> 0:02:57.400 and said, look, now the mandate is no longer constitutional. 0:02:57.720 --> 0:03:00.400 The reason the mandate is no longer constitutional is that 0:03:00.480 --> 0:03:03.040 the Supreme Court, in an earlier case in twenty twelve 0:03:03.320 --> 0:03:06.120 and f I d. Versus abilious upheld the mandate as 0:03:06.160 --> 0:03:09.040 attacks to the penalty of zero. They argued, it can't 0:03:09.040 --> 0:03:13.880 be attacked still relatively insignificant, given that the mandate was 0:03:13.919 --> 0:03:16.919 not really enforced. However, they weren't even further than that, 0:03:17.160 --> 0:03:20.760 and argued that the entire Affordable Charact was so inextricably 0:03:20.760 --> 0:03:23.640 tied to the mandate that the whole two thousand piece 0:03:23.720 --> 0:03:26.359 law had to go down with it, and they might 0:03:26.360 --> 0:03:29.120 have been further and said Congress told the court as much. 0:03:29.200 --> 0:03:33.120 Congressise effectively instructed the Court to strike the entire statute down, 0:03:33.680 --> 0:03:36.640 even after Congress decided not to strict to church you down. 0:03:36.960 --> 0:03:39.320 So it's kind of a preposterous set effect that brought 0:03:39.360 --> 0:03:42.240 us to earlier. So the first question was whether the 0:03:42.320 --> 0:03:45.240 challengers here have standing to sue, And we heard all 0:03:45.320 --> 0:03:48.640 kinds of hypotheticals from the justice is about mowing the lawn, 0:03:48.800 --> 0:03:52.840 wearing a mask, flying the flag. What were they getting at? Yes, 0:03:52.880 --> 0:03:54.640 So I think it was really interesting start to the 0:03:54.760 --> 0:03:58.120 oral argument. Um, we had all the justices in our 0:03:58.120 --> 0:04:00.680 first line of question. We're asking these stand main questions. 0:04:00.680 --> 0:04:03.440 And so while everyone who's sort of listening in waiting 0:04:03.480 --> 0:04:06.160 to get to the consequential question of will be a 0:04:06.480 --> 0:04:10.200 a survive Uh, the Court took the entire time for 0:04:10.280 --> 0:04:13.680 the California Solicitor General to spend on the threshold question 0:04:13.720 --> 0:04:16.279 of standing. So why is that important? First of all, 0:04:16.279 --> 0:04:19.799 standing is a threshold question. If the parties aren't injured 0:04:20.000 --> 0:04:22.760 deficients to bring the case, the case goes away. So 0:04:22.800 --> 0:04:25.679 it's important that the courts from the time on that second, 0:04:25.880 --> 0:04:28.600 you've got to remember that these standing issues are important 0:04:28.640 --> 0:04:31.760 to the court beyond the context of the Affordable Care Act. 0:04:32.080 --> 0:04:35.400 Whatever happened to the Affordable Care Act this year, UM 0:04:35.680 --> 0:04:37.800 may well be tied just to the Affordable Care Act. 0:04:37.839 --> 0:04:40.320 Of course, if they affirm the presumption of sever ability, 0:04:40.440 --> 0:04:44.440 that's very important. But there are important standing issues about 0:04:44.440 --> 0:04:47.920 the ability of states to bring cases and what kind 0:04:47.920 --> 0:04:50.520 of injury individuals need to bring cases, and the Court 0:04:50.600 --> 0:04:53.279 cares about those issues a lot in the long term. 0:04:53.640 --> 0:04:57.320 So I was not surprising to the justices, uh, focusing 0:04:57.360 --> 0:04:59.400 on that for the first round of questions. What was 0:04:59.480 --> 0:05:01.520 the meaning of all those questions? You're right, there are 0:05:01.560 --> 0:05:05.000 a lot of interesting hypothetical where if there's a requirement 0:05:05.000 --> 0:05:07.200 that you were a mask, but there's no penalty to 0:05:07.320 --> 0:05:09.719 enforce it. Where if there's a requirement to everybody knows 0:05:09.760 --> 0:05:12.120 their lawns and there's no penalty to enforce it, and 0:05:12.160 --> 0:05:14.400 so on. And when they were trying to get at 0:05:14.480 --> 0:05:19.520 was the question of um, whether you could be sufficiently 0:05:19.640 --> 0:05:24.240 injured by failing to obey a requirement that doesn't have 0:05:24.279 --> 0:05:27.920 an enforcement provision. So an example that the Chief Justice 0:05:27.960 --> 0:05:32.159 gave was, uh, if you decided if you were then asked, 0:05:32.560 --> 0:05:35.440 have you ever broken a law on an employment form 0:05:35.480 --> 0:05:38.120 and you decided to say not to mow your lawn? Um, 0:05:38.160 --> 0:05:40.560 would you have to check the box to say yes, 0:05:40.760 --> 0:05:43.599 I wrote the law or not? And they were trying 0:05:43.640 --> 0:05:47.040 to use those hypotheticals to get the question about whether 0:05:47.120 --> 0:05:51.320 an unenforceable requirement which is how the justice were describing 0:05:51.320 --> 0:05:55.440 as for those hypotheticals, would be sufficient to hook injury 0:05:55.440 --> 0:05:59.600 onto for purpose of standing, knowing that you can't definitively 0:05:59.720 --> 0:06:03.400 ten from the justices questions, do you think that there 0:06:03.400 --> 0:06:06.560 are enough votes to say that there is standing and 0:06:06.600 --> 0:06:10.040 they can go to the merits question? So I think 0:06:10.080 --> 0:06:12.440 that we don't know how the court is going to 0:06:13.279 --> 0:06:16.240 rule on standing. There were so many different questions going 0:06:16.279 --> 0:06:19.440 in so many different areas that it's very hard to tell. 0:06:19.760 --> 0:06:24.479 If I were a betting person, I would that slightly, 0:06:24.960 --> 0:06:26.560 although I've never been on the court to say that 0:06:26.640 --> 0:06:30.000 the Court will get to the Merritt's question, because there 0:06:30.000 --> 0:06:33.960 did seem to be enough justices that were interested, uh 0:06:34.000 --> 0:06:36.160 in getting to the merriage question. And in fact, and 0:06:36.440 --> 0:06:39.800 as we'll talk about in upholding the Affordable Care Act. 0:06:39.960 --> 0:06:42.680 But there is one pretty significant piece of the standing 0:06:42.760 --> 0:06:46.480 argument um which I think is relatively important, and it's 0:06:46.520 --> 0:06:49.360 just the argument that the Department of Justice is making 0:06:49.720 --> 0:06:53.960 it which there was effectively trying to bootstrap standing by 0:06:54.080 --> 0:06:59.000 using the entire Affordable Care Acts to challenge one particular provision. 0:06:59.440 --> 0:07:02.359 So based me the day argument is because some of 0:07:02.360 --> 0:07:06.400 the plaintiffs were harmed by some provisions in the Affordable 0:07:06.440 --> 0:07:09.200 Care Act, they can then argue that because all of 0:07:09.240 --> 0:07:11.920 the provisions of the Affordable Character are tied together, that 0:07:11.960 --> 0:07:15.680 they're inseparable. That allows them to get into courts to 0:07:15.920 --> 0:07:21.160 argue that demandated are constitutional, and therefore all the provisions, 0:07:21.200 --> 0:07:24.240 including the one that offends them, will be struck down. 0:07:25.080 --> 0:07:28.720 And just the So the mayor says, well, that's really 0:07:28.840 --> 0:07:32.200 your argument. Shouldn't they have just challenged the provision that 0:07:32.320 --> 0:07:35.040 they don't like. Why are they trying to come into 0:07:35.120 --> 0:07:38.360 court through the back door of arguing the whole statute 0:07:38.400 --> 0:07:42.520 is inextriculably tied together, so I can therefore challenge anything 0:07:42.560 --> 0:07:45.800 I want right to bring the whole statute down. So 0:07:46.320 --> 0:07:48.200 just to so do majors sort of call them on that, 0:07:48.280 --> 0:07:51.480 I think just as Thomas is very, very worried about 0:07:51.480 --> 0:07:55.880 this idea of thinking about the statute as inseparable, as 0:07:55.880 --> 0:07:59.040 a single coherent unit that can't be broken apart for 0:07:59.120 --> 0:08:02.040 purposes of the stand. The youngquery, because you saw how 0:08:02.160 --> 0:08:04.760 that could just open up and explode This idea of 0:08:04.840 --> 0:08:08.080 articles were standing, would make it very easy for lit 0:08:08.120 --> 0:08:11.560 again to get into courts of challenge thing by bootstepping 0:08:11.680 --> 0:08:15.000 arguments on the dickerent positions that had no harmful effect 0:08:15.040 --> 0:08:18.040 on them whatsoever. When the Justice is turned to considering 0:08:18.080 --> 0:08:21.120 the merits of the case and whether the individual mandate 0:08:21.240 --> 0:08:25.000 is still constitutional after Congress zero and out the penalty, 0:08:25.360 --> 0:08:29.560 Chief Justice John Roberts questioned former Solicitor General Donald Vailli, 0:08:29.760 --> 0:08:32.880 who now represents the House, about his apparent change of 0:08:32.960 --> 0:08:39.120 position since the arguments in. But now the representation is 0:08:39.160 --> 0:08:43.440 that who know everything's fine without it? Uh? Why why 0:08:43.480 --> 0:08:46.760 de bate and switched? And was was Congress wrong when 0:08:46.760 --> 0:08:49.440 it said that the mandate was the key to the 0:08:49.440 --> 0:08:53.480 whole thing that we spent spent all that time talking 0:08:53.480 --> 0:08:57.040 about broccoli for nothing? Justice Steven Bryer pointed to many 0:08:57.120 --> 0:08:59.679 laws that tell the public to do things without any 0:09:00.000 --> 0:09:03.480 horseman provisions and he pressed the Texas Solicitor General to 0:09:03.559 --> 0:09:08.000 explain why those statutes aren't now open to challenge. World 0:09:08.000 --> 0:09:13.840 War One defense statutes, buy war bonds, an environmental statute 0:09:14.360 --> 0:09:19.040 plant a tree, a one of a thousand statutes commemorating 0:09:19.120 --> 0:09:24.040 something beautiful, city's day, clean up the yard. Are all 0:09:24.080 --> 0:09:28.720 those statutes suddenly open to challenge? I've been talking to 0:09:28.760 --> 0:09:31.960 Abbey Gluck, a professor at Yale Law School. Abbey, where 0:09:32.000 --> 0:09:34.800 do you think that justice has stood on the constitutionality 0:09:34.840 --> 0:09:38.520 of the individual mandate? Which interesting about the discussion on 0:09:38.559 --> 0:09:41.520 the mandate is that, again, this is more an area 0:09:41.559 --> 0:09:44.559 in which I don't think we can predict if a 0:09:44.640 --> 0:09:48.160 mandate itself will survive. Uh As I said before, I 0:09:48.200 --> 0:09:50.240 do think it's more likely than that if the rest 0:09:50.240 --> 0:09:52.360 of the Affordable Care Act will survive. And that's a 0:09:52.440 --> 0:09:56.400 consequential question in the case, because I said earlier, mandate 0:09:56.679 --> 0:09:58.640 has not been fully enforced, So whether or not a 0:09:58.679 --> 0:10:02.920 survived has relatively about practical significance. But the oil argument 0:10:03.040 --> 0:10:06.560 was basically a debate about different kinds of scenarios. One 0:10:06.600 --> 0:10:10.600 scenario is could this possibly still be attacked? There's a 0:10:10.640 --> 0:10:14.720 really interesting set of questions um that you know, rotated 0:10:14.760 --> 0:10:20.199 among course search and Alito and Justice of Mayor, among others, 0:10:20.280 --> 0:10:23.839 where they were exploring the idea of whether attack with 0:10:23.960 --> 0:10:26.280 a number of zero on it could still be attacked 0:10:26.320 --> 0:10:30.280 in justice of mariority is some really helpful examples. For instance, 0:10:30.280 --> 0:10:35.200 she asked the lawyers, well, what if Congress set attacks 0:10:35.240 --> 0:10:37.880 and then phased it out down to zero over a 0:10:37.880 --> 0:10:41.040 course of years, would still be attacked? Would have Congress 0:10:41.080 --> 0:10:44.560 enactive attack and gave it a delayed beginning and said 0:10:44.559 --> 0:10:46.880 it is zero for the first few years and then 0:10:46.960 --> 0:10:49.959 raised the level over time, would that still be attacks? 0:10:50.000 --> 0:10:53.000 And you turned into the challenger said yes. So she 0:10:53.120 --> 0:10:56.000 pressed and said, how is this different? How is sort 0:10:56.000 --> 0:10:59.480 of attacked and waiting attacks temporarily set of zero not 0:10:59.600 --> 0:11:03.800 attacked for purposes of its constitutional authority? That was one 0:11:03.840 --> 0:11:06.520 set of questions. Then there's another set of questions that 0:11:06.600 --> 0:11:09.199 sort of painted at the idea that maybe this is 0:11:09.280 --> 0:11:11.520 no longer attacked at all, and that would make it 0:11:11.559 --> 0:11:15.360 invalid because then nothing could justify it except for the 0:11:15.400 --> 0:11:18.680 commerce clause, as a court already held in twenty twelve 0:11:18.760 --> 0:11:21.600 that the mandate was not a valid exercise of Congress's 0:11:21.640 --> 0:11:25.720 commerce power just to Starrett was very interested in that argument. 0:11:26.440 --> 0:11:29.480 And then you know, throughout there was this other, this 0:11:29.600 --> 0:11:33.800 other set of arguments about you know, how to conceptualize 0:11:33.800 --> 0:11:35.839 this at all. Maybe it's not a tax, maybe it's 0:11:35.840 --> 0:11:39.400 the mandate, Maybe it's something different entirely. Maybe it's just 0:11:39.720 --> 0:11:45.520 a precatory requirement, as Formers really said, you know, it's 0:11:45.559 --> 0:11:49.240 not operative, right, So that's the language that the Blue 0:11:49.280 --> 0:11:51.600 states in the House are using it. It's not a requirement, 0:11:51.720 --> 0:11:53.800 it's not a command. And even if you don't see 0:11:53.840 --> 0:11:57.040 this attack, it's nothing operative. It has no effect, it 0:11:57.120 --> 0:11:59.719 can't harm anybody. And so those are the kind of 0:11:59.720 --> 0:12:02.959 different scenarios that the Court was moving amom and was 0:12:03.000 --> 0:12:05.719 trying to figure out how it was going to characterize 0:12:06.360 --> 0:12:09.480 what we call the mandate with the court construted attacks. 0:12:10.160 --> 0:12:14.320 What did you make of Justice Roberts asking for really 0:12:14.880 --> 0:12:17.920 why the bait and switch and we've been talking about 0:12:17.920 --> 0:12:20.480 broccoli all this time for nothing? Yeah, that was a 0:12:20.520 --> 0:12:23.640 great exchange. So the argument opened up with the California 0:12:23.720 --> 0:12:26.199 Plis General. It was not surprisingly they used up all 0:12:26.200 --> 0:12:28.520 of his time on the standing issues. So when they 0:12:28.559 --> 0:12:31.360 get to r Really who was overtending the House, they 0:12:31.360 --> 0:12:33.240 suddenly are ready to turn to the mert, so they 0:12:33.280 --> 0:12:35.360 kind of have to clear the air. And the reason 0:12:35.400 --> 0:12:37.960 I have to clear the air is that really was 0:12:38.080 --> 0:12:41.880 Barack Obama Solicitor General. He defended the Affordable Care Act 0:12:41.960 --> 0:12:44.760 in twenty twelve and twenty fifteen, and the Supreme Court 0:12:45.120 --> 0:12:49.000 and back in the actually argued that the mandate was 0:12:49.040 --> 0:12:51.760 so essential to the operation of a few of the 0:12:51.840 --> 0:12:54.560 insurance provision and the Affordable Care Act that if the 0:12:54.600 --> 0:12:57.600 mandate was struck down, he suggested, the courts are strug 0:12:57.640 --> 0:13:00.080 down a few of those insurance provisions as well. Know. 0:13:00.520 --> 0:13:02.680 Roberts comes in and says, we had this whole debate 0:13:02.720 --> 0:13:06.080 in twelve and you argued here about the mandate's essentiality. 0:13:06.240 --> 0:13:08.559 That was the broccoli debate, and now you're back saying 0:13:08.559 --> 0:13:11.320 it doesn't matter, so explain yourself. And that was really 0:13:11.360 --> 0:13:15.000 important because it gave really an opportunity to both bring 0:13:15.080 --> 0:13:17.720 us into the present, to move us back from the 0:13:18.440 --> 0:13:21.720 twelve exchange, which is really no longer legally relevant, and 0:13:21.760 --> 0:13:25.679 also to explain why the people medicating positions have switched. 0:13:26.040 --> 0:13:28.679 And what we really said was well, back then, it 0:13:28.880 --> 0:13:31.760 seemed to Congress that it needed in his words, both 0:13:31.800 --> 0:13:35.199 carrots and sticks to get the Affordable Flare Act markets 0:13:35.240 --> 0:13:38.040 working effectively. The mandate was the stick, and he said, 0:13:38.080 --> 0:13:41.280 over time it became clear that actually you don't need 0:13:41.280 --> 0:13:43.800 the stick. The parrots are working just fine. And so 0:13:43.840 --> 0:13:48.600 we said, the seventeen Congress, enlightened by these intervening years, 0:13:48.679 --> 0:13:53.000 informed by data including a CBO report, made the decision 0:13:53.320 --> 0:13:55.880 that the stick was no longer necessary. So what once 0:13:55.960 --> 0:13:59.160 was thought to be important, it's not important anymore. And 0:13:59.320 --> 0:14:02.559 that's why the appropriate to sever what's really interesting about that? 0:14:02.960 --> 0:14:05.560 If we had another great analogy later in the argument 0:14:05.640 --> 0:14:08.880 by Justice Alito, who says, you know, once upon a 0:14:08.960 --> 0:14:11.599 time there was a piece that was really essential to 0:14:11.720 --> 0:14:14.200 flying the plane, and now that piece has been taken 0:14:14.200 --> 0:14:17.920 out when the plane hasn't crashed. Right. That's another way 0:14:18.400 --> 0:14:22.200 of sort of explaining to change of events that happens 0:14:22.200 --> 0:14:25.200 over time. And of course it's the case that Congress 0:14:25.240 --> 0:14:28.840 is allowed to offer statutes as circumstances change, and that's 0:14:28.840 --> 0:14:32.040 exactly what has been in missing. At one point, Justice 0:14:32.080 --> 0:14:36.800 Briar seemed almost exasperated with the Texas Solicitor General when 0:14:36.840 --> 0:14:41.680 he was questioning him about other laws that like Obamacare, 0:14:42.000 --> 0:14:47.080 don't have a mechanism for enforcement explain Briar's concern. Throughout 0:14:47.080 --> 0:14:50.200 the argument, there was a repeated line of question about 0:14:50.280 --> 0:14:54.200 so called pregatory laws, laws that require that sort of 0:14:54.240 --> 0:14:57.520 ask people to do something. We don't have any enforcement mechanism, 0:14:57.960 --> 0:15:01.080 So Jesice Briar kept giving examples of many laws he 0:15:01.200 --> 0:15:03.680 remembered from his time in the Senate. He Spurs who 0:15:03.720 --> 0:15:05.760 was time in the Senate, and said, we had laws 0:15:05.840 --> 0:15:09.760 declaring X y Z a commemorative day building this post office, 0:15:10.040 --> 0:15:13.000 all sorts of laws that sort of urged but don't 0:15:13.040 --> 0:15:16.280 have a penalty, don't have a tax associated with it. 0:15:16.440 --> 0:15:19.280 And Briar looked at the Solicitor General and said, are 0:15:19.280 --> 0:15:21.920 you telling me that all of those hundreds of laws 0:15:21.920 --> 0:15:24.880 that I remember across the U. S Code that asked 0:15:24.880 --> 0:15:27.480 people to do things who don't have an import fit mechanism, 0:15:27.680 --> 0:15:30.840 are all of those invalid? Because that's the theory they 0:15:30.880 --> 0:15:33.960 were boarding here with respect to the mandate. And he 0:15:34.080 --> 0:15:37.960 got very frustrated because he took the Texas Solicitor General 0:15:38.200 --> 0:15:40.400 on the Department of Justice and making the claim that 0:15:40.440 --> 0:15:44.880 they had somehow prus the entire US Code and searched 0:15:44.880 --> 0:15:47.440 for provisions like this and found that none of them 0:15:47.520 --> 0:15:49.960 used the shall language that the mandate uses, that the 0:15:49.960 --> 0:15:52.960 mandate was really a command. And Briar pressed them and said, 0:15:53.000 --> 0:15:56.160 have you actually read every statute in the US Code? 0:15:56.400 --> 0:15:59.080 Are you absolutely sure? But I didn't remember it that 0:15:59.120 --> 0:16:01.240 way from my time in Congress, and I remember writing 0:16:01.280 --> 0:16:04.120 a lot of those laws that don't have an enforcement mechanism. 0:16:04.520 --> 0:16:06.800 And in the end the lawyer sort of step back 0:16:06.840 --> 0:16:10.040 and said, no, Justice, we haven't read every single law 0:16:10.040 --> 0:16:12.400 in the US Code. So you know, I bet Justice 0:16:12.440 --> 0:16:14.960 Briar's law parks are going to be very busy this weekend. 0:16:15.040 --> 0:16:18.800 It's coming the US Code. I'm serious for these examples 0:16:18.840 --> 0:16:22.240 because what the challenger's lawyers round up sort of digging 0:16:22.280 --> 0:16:26.120 their feet into with this idea that only the Affordable 0:16:26.200 --> 0:16:31.200 Care Acts provision uses the word shall. Right, Briar said, 0:16:31.240 --> 0:16:34.880 you know, are you sure? Right? You are? You absolutely sure? 0:16:35.680 --> 0:16:37.720 And then they started having discussions about is it shall, 0:16:38.080 --> 0:16:41.760 is it should? Doesn't make a difference. So I think 0:16:41.800 --> 0:16:45.400 Justice Briar is informed by his knowledge of the US Code, 0:16:45.480 --> 0:16:47.320 his knowledge of the statutory of that have faith in 0:16:47.640 --> 0:16:51.960 this kind of mechanism seemed familiar to him, didn't seem 0:16:52.000 --> 0:16:54.560 that unusual for Converse to put in the provision that 0:16:54.640 --> 0:16:59.360 has no enforcement mechanism. Um, just really pressing practice in 0:16:59.400 --> 0:17:02.040 the Department of just about that. And now we come 0:17:02.080 --> 0:17:04.439 to the third part of the analysis, and what I 0:17:04.480 --> 0:17:07.520 think is the headline about the arguments, which is that 0:17:07.720 --> 0:17:12.800 two conservative justices, the Chief Justice and Justice Kavanaugh, seemed 0:17:12.840 --> 0:17:16.359 to indicate in no uncertain terms that the mandate could 0:17:16.359 --> 0:17:19.600 be severed from the rest of the law and Obamacare 0:17:19.840 --> 0:17:23.239 will survive. Here's Justice Kavanaugh. I tend to agree with 0:17:23.280 --> 0:17:26.640 you on this, a very straightforward case for severability under 0:17:26.640 --> 0:17:30.000 our precedents, meaning that we would exercise the mandate and 0:17:30.080 --> 0:17:33.359 leave the rest of the act in place. Yeah, I 0:17:33.400 --> 0:17:35.000 think that's right, and I think you're right that that 0:17:35.119 --> 0:17:37.200 is to have mine. You know, as I've been saying 0:17:37.200 --> 0:17:41.360 throughout this conversation, Um, you know, the standing issues are 0:17:41.640 --> 0:17:44.440 very important in general as the court to find a 0:17:44.520 --> 0:17:47.679 standing Jars FURTA. It's very important for the court to 0:17:47.720 --> 0:17:52.080 resolve this threshold question about whether litigants can take these 0:17:52.200 --> 0:17:56.280 jeep dousand page laws find something offensive, uh, and us 0:17:56.320 --> 0:17:59.120 an inseverability argument to create standing where there is none. 0:17:59.200 --> 0:18:02.240 That's important. The second to your question of whether the 0:18:02.280 --> 0:18:07.160 mandate is unconstitutional. You know, that's important to some extent, 0:18:07.520 --> 0:18:10.240 but we've already had that discussion, and that, if I be, 0:18:10.440 --> 0:18:12.240 we already know where most of the court is on 0:18:12.320 --> 0:18:15.119 a commerce cause and the mandate's operation on the ground 0:18:15.160 --> 0:18:19.440 is not that significant. But this significant question, obviously is 0:18:19.880 --> 0:18:22.200 what happens to the rest of the law. That's the 0:18:22.320 --> 0:18:25.199 question that affects twenty million people who have thrown up 0:18:25.200 --> 0:18:28.679 the roles, the hundred million people who have previous in conditions, 0:18:28.720 --> 0:18:31.320 all the billions of dollars in Medicare and Medicaid and 0:18:31.320 --> 0:18:33.720 so on, and really want this to be economy the 0:18:33.760 --> 0:18:36.800 health care system. So that's the big question and to 0:18:37.000 --> 0:18:39.240 that question, and this is why you're right, that is 0:18:39.240 --> 0:18:42.879 the headline. Uh, it does look like the affordable character 0:18:42.920 --> 0:18:46.480 it's likely to survive. Um. You know, we didn't hear 0:18:46.560 --> 0:18:51.679 too much from the three liberal justices specifically about severability. UM. 0:18:51.680 --> 0:18:54.880 But we did hear quite a bit from Justice Savanaugh 0:18:55.200 --> 0:18:59.119 and Chief Justice Roberts. Both justices realign themselves with a 0:18:59.200 --> 0:19:04.120 strong presumption of separability. Justice Robert said he would find 0:19:04.160 --> 0:19:07.040 it hard to believe that the Court should write down 0:19:07.119 --> 0:19:11.840 the entire Affordable Care Acts from Congress itself after seventies 0:19:12.240 --> 0:19:15.320 failed attempts to repeal and replace, decided only to zero 0:19:15.359 --> 0:19:17.920 out that one provision and leave the rest of the 0:19:18.000 --> 0:19:21.119 law intact. And just shee. Justice Robert said, given that 0:19:21.200 --> 0:19:23.960 Congress did that, given that Congress left the rest of 0:19:23.960 --> 0:19:27.479 the law intact, he said, it's not our job right 0:19:27.600 --> 0:19:31.440 to strike it down. So that was really interesting. Um. 0:19:31.560 --> 0:19:34.920 Justice Kavanaugh said more than one that he thought the 0:19:34.960 --> 0:19:38.000 severability argument was very strong here. He sort of laid 0:19:38.080 --> 0:19:42.960 his cars on the table, and both Kavanaugh and Roberts um, 0:19:43.240 --> 0:19:47.760 we're very spectacle of this argument made by Texas and 0:19:47.800 --> 0:19:51.679 the Department of Justice that Congress somehow dictated to the 0:19:51.720 --> 0:19:55.080 Court in the Affordable Care Act that come what may, 0:19:55.440 --> 0:19:58.200 it should write down the Affordable Care Act, no matter 0:19:58.280 --> 0:20:02.000 what it demanded a struck down. And that argument is 0:20:02.040 --> 0:20:07.480 based on statutory findings of the law that were inserted 0:20:07.520 --> 0:20:12.639 into the law to justify Congresses power under the Commerce Clause. 0:20:13.680 --> 0:20:17.200 As you know, the Court rejected Congress's Commerce Clause justifications, 0:20:17.560 --> 0:20:20.160 but the language from those finding, who was talked about 0:20:20.200 --> 0:20:24.040 the mandates importance to the markets is what the challenger sees. 0:20:24.119 --> 0:20:27.640 Don Justice Kavanaugh and to Justice Roberts really weren't having 0:20:27.640 --> 0:20:29.960 any of that. They said, you know what, I know 0:20:30.040 --> 0:20:33.680 what an inseparability clause looks like. The US Code has 0:20:33.760 --> 0:20:37.919 plenty of examples, and that's not what this looks like. 0:20:38.359 --> 0:20:41.399 When Congress wants to write in separability clause, it knows 0:20:41.640 --> 0:20:44.240 how to do that. And I think those are very 0:20:44.280 --> 0:20:48.040 important moments in the our arguments for the Affordable Care Act. 0:20:48.520 --> 0:20:54.120 Don't really know where Barrett Thomas or such oral leader 0:20:54.800 --> 0:20:59.879 are on separability. It is interesting that Justice Thomas, who 0:21:00.880 --> 0:21:06.040 in some past cases has indicated desire to reshaped severability doctrine, 0:21:06.440 --> 0:21:09.840 just kept saying sever ability is a question of statutory interpretation. 0:21:10.200 --> 0:21:13.080 He didn't seem to resist the notion of severability in general. 0:21:13.800 --> 0:21:17.920 And we had that analogy from Justice Alito saying, well, 0:21:17.920 --> 0:21:20.160 we thought the mandate was so important, but we've taken 0:21:20.200 --> 0:21:22.879 it out and the point is so flying. That sounds 0:21:22.920 --> 0:21:26.320 kind of like a severability argument to me um. And 0:21:26.359 --> 0:21:29.119 then we really didn't hear anything from Core such a 0:21:29.200 --> 0:21:32.159 Barrett one way or the other about how they might 0:21:32.240 --> 0:21:35.280 rule on severability if they do ever get to that question. 0:21:36.200 --> 0:21:38.439 And mean, let me ask you this question, why do 0:21:38.520 --> 0:21:43.600 you think that the Chief Justice and Justice Kavanaugh so 0:21:43.760 --> 0:21:47.920 plainly laid their cards on the table, as you say, 0:21:48.440 --> 0:21:51.440 to say that you know, basically we're going to vote 0:21:51.440 --> 0:21:55.560 that this is severable. Well, you know I've written this before. 0:21:55.640 --> 0:21:57.800 I think of you and I discussed this before as well. 0:21:58.119 --> 0:22:02.200 You know, Justice and Justice Kavana just wrote opinions last 0:22:02.320 --> 0:22:06.639 term on severability. Right. Each of them authored important opinions, 0:22:07.040 --> 0:22:11.240 strongly reaffirming the presumption in favor of separability. Both of 0:22:11.240 --> 0:22:14.560 them used the same analogy in those opinions, that's um 0:22:14.760 --> 0:22:18.320 Sellia law and the American Political Consultants case. Both of 0:22:18.320 --> 0:22:22.720 them used the same analogy, comparing severability to surgical severance 0:22:22.920 --> 0:22:27.719 rather than wholesale destruction, a scalpel rather than a bulldozer. 0:22:28.160 --> 0:22:30.920 Both of them so sort of in tandem last spring 0:22:31.240 --> 0:22:34.359 reaffirming that auction. And it's very very hard for me 0:22:34.440 --> 0:22:37.520 to believe that in writing those cases they didn't have 0:22:37.560 --> 0:22:39.640 the Affordable Care Acts. Somewhere in the back of their 0:22:39.640 --> 0:22:42.840 mind they knew the case was coming. The new severability 0:22:43.600 --> 0:22:46.320 is going to be important. Just as Kavanaugh wrote about 0:22:46.320 --> 0:22:48.480 severability in the Law Review article before he was on 0:22:48.520 --> 0:22:51.959 the Supreme Court, talking about the importance of the strong presumption. 0:22:52.400 --> 0:22:55.040