Part A During the COVID 19 pandemic, providers, facilities, and government officials have faced unprecedented issues affecting the lives of thousands of patients

Part A

During the COVID 19 pandemic, providers, facilities, and government officials have faced unprecedented issues affecting the lives of thousands of patients. Please read this article (Links to an external site.). “Article attached.”

Then find another article addressing ethical and legal issues arising from the crisis.

Summarize the issue addressed in your article. Then provide an in-depth analysis of the legal and ethical issues involved. Try to be as objective as possible. Look at both sides of the argument. Explore the possible legal consequences of following the different options. In your final paragraph, provide your opinion of how the health care system should handle the situation.

The response should be three to four full, substantive paragraphs in length.

Part B

The case of Texas vs. California is currently being decided by the US Supreme Court. Several states are challenging the constitutionality of the 2010 Affordable Care Act (ACA), because the 2017 IRS Tax Code reforms lowered the individual mandate penalty to zero.

Please open the following link to the case and read the case summary. Then listen to about 30 minutes of the oral argument. The argument is divided into four parts of a half hour each. The first two parts advocate for keeping the ACA. The second two parts advocate for its repeal.

California v Texas (Links to an external site.) “Copy attached.”

Please answer the following questions.

Q1- Tell us approximately the section of the argument on which you are focusing for your post.

Q2- What did you find most interesting or surprising?

Q3- Did any section of the argument frustrate you?

Q4- Did listening to the argument increase or decrease your interest in studying law? Why?

Response should be four to five full, substantive paragraphs in length.

Please the response should be separate for Part A & Part B with questions 1,2,3,4.

Total pages 4 - 5 excluding cover and reference pages.

Nursing Homes Have Thousands Of Ventilators That Hospitals Desperately Need As the number of COVID-19 patients climbs and health officials hunt for ventilators to treat them, nursing homes across the United States have a cache ? about 8,200 of the lifesaving machines, according to data from the Centers for Medicare & Medicaid Services. Most of the machines are in use, often by people who’ve suffered a brain injury or stroke. Some of those residents are in a vegetative state and have remained on a ventilator for years. State officials are working to consolidate ventilators where they are most urgently needed. But so far, the supply in nursing homes has not drawn the same attention. Or course, commandeering those units would set up a monumental ethical dilemma: Do you remove life support for a long-term nursing care patient in order to give a COVID-19 patient a better chance of survival? The highest number of machines, about 2,300, is in California, where the state has created designated nursing home units for people on life support, officially called subacute units but known pejoratively by some doctors as “vent farms.” New York has the second most, 1,822, according to state officials. Already, one nursing home on Long Island has lent a nearby hospital 11 ventilators that were not being used, leaving just five for its residents. “The hospital came to us last week and asked, ‘Do you have any ventilators?’” the nursing home assistant administrator said on the condition of anonymity because he was not authorized to speak to the news media. “We left ourselves with the bare minimum,” he said. In all, three hospitals reached out to the nursing home for ventilators ? it had to say no to the other two. New York Gov. Andrew Cuomo has announced an executive order that ventilators not in use by hospitals be redeployed to ICUs. And he’s calling in the New York National Guard to facilitate the order. “We know where every ventilator is,” Cuomo said Sunday. Nursing home ventilators are not included in his order, but they are included in the state’s tally of the machines. Dr. Michael Kalafer, a pulmonologist and the medical director at two San Diego subacute units, said he can’t imagine taking one of his patients off a ventilator because it’s needed for someone else. “I severely doubt we’ll take [a hypothetical] Mrs. Smith off a ventilator because she’s 80 and has been on it for a few years and has not gotten better,” Kalafer said. But these are precisely the decisions bioethicists are being asked to weigh in on as the country confronts the crush of COVID-19 patients overwhelming the health care system. And in some cases, states have already decided to give people who are severely braininjured a lower priority when it comes to access to ventilators. Disability advocates oppose such guidelines and filed complaints with the Department of Health and Human Services last month, according to ProPublica. And although states and health associations can draw up recommendations, they are not legally binding. “From an ethical point of view, for people who are not conscious, if it’s a matter of removing people from a [ventilator] who are not going to recover, I think it’s a hard decision, but one that in an emergency has to be made,” said Ronald Bayer, a professor of sociomedical sciences at the Mailman School of Public Health at Columbia University. Bayer has been a member of the World Health Organization and in 2011 served on an ethics subcommittee that advised the Centers for Disease Control and Prevention on the allocation of ventilators in the event of a severe pandemic. He and several other ethicists said these decisions should not be made at the bedside but by triage committees or people in supervisory roles. And the guidelines ought to be uniform and transparent. That’s why the CDC, the state of New York and medical associations like the American College of Chest Physicians have drafted ethical recommendations for deciding how to ration lifesaving equipment like ventilators in the event of a pandemic. The California Department of Public Health in 2008 released guidelines to follow during a health care surge: They don’t specifically address ventilator allocation, but rather resources in general. Doctors should consider the likelihood of survival and change in the quality of life as opposed to the ability to pay or the perception of a person’s worth when there are not enough medical resources to treat everyone in need. When the New York State Task Force on Life and the Law updated its ventilator allocation guidelines in 2015, it considered the question of withdrawing ventilators from nursing home residents, or chronic ventilator patients, to save the lives of those who grow critically ill during a pandemic. “Are we comfortable sacrificing this group in exchange for saving more lives?” asked Stuart Sherman, the executive director of the task force at the time. That question drew much debate, but the group ultimately decided that “chronic” vent patients should not be included in the pool when considering how to allocate ventilators during a pandemic. The task force does recommend prioritizing ventilator therapy based on who is likely to survive using a SOFA ? Sequential Organ Failure Assessment ? score. Cuomo, whose daily televised news conferences have made “ventilators” a household word, is not making decisions based on those guidelines. The task force report is not a binding policy document, according to a spokesperson from the governor’s office. In the U.S., there are about 62,000 “full-featured ventilators,” the kind needed to treat the most severe cases of COVID-19. An additional 10,000 to 20,000 ventilators are in the government’s National Strategic Stockpile, and 98,000 basic models, the kind often in nursing homes, exist that could be used in a crisis. In the simplest terms, ventilators push oxygen into the lungs. The machines in ICUs are more powerful and have better monitoring systems than those in a nursing home. Kalafer’s patients need ventilators to do the work for respiratory muscles. He said they could be used in a pinch during the pandemic. But the real issue is finding enough staff trained to operate and monitor the machines. Meanwhile, a group of bioethicists, physicians and public health experts are recommending that in a shortage, health care workers could disconnect people from ventilators who have little or no chance of recovery to put them in service of those who do. The recommendation is the first of six listed in an article published in the New England Journal of Medicine last month. It did not consider the people who’ve been on vents long term. “Honestly, before you emailed me, I thought about those patients but never thought about the actual number and how important that might be,” said Dr. James Phillips, one of the paper’s authors and chief of disaster and operational medicine at George Washington University Hospital. “For patients who have devastating neurological injury and are deemed to never recover and who require ventilation for the rest of their lives, I think it’s an ethical conversation to have with those families to determine if it’s a more appropriate use of resources,” Phillips said. One ventilator can save multiple lives. The average time a person sick with COVID-19 who needed a ventilator was 11 days, according to an NEJM article that looked at critically ill patients in the Seattle region. Using that number, eight people could potentially be saved over three months. It is an especially complex moral dilemma when considering the withdrawal of treatment from someone who has lived several years on a ventilator, said Govind Persad, an assistant professor at the University of Denver Sturm College of Law and one of the authors of the NEJM paper. Persad offered a hypothetical scenario. “A 78-year-old grandmother has been on ventilator support for 5 years in a subacute facility and is expected to remain on it for the foreseeable future. Covid-19 has reached a senior apartment complex nearby, and doctors are looking everywhere for more ventilators,” Persad wrote. “They think one more ventilator would give them a chance of saving another 78-yearold grandmother in the senior apartments who is growing worse with viral pneumonia, and, once she is off the ventilator, to save some of her neighbors, who are not yet sick but who they expect to be sick in a few weeks.” Who gets the ventilator? Persad suggested it should go to the grandmother in the senior apartments because she is likely to need less time on the ventilator, enabling the ventilator to be used to save her neighbors later. As he put it: “We save her in order to save more lives, not because of quality-of-life judgments.” The real-life decision is more problematic and heart-wrenching. Nancy Curcio’s daughter Maria, who was born with a disabling form of cerebral palsy, was on a ventilator as an adult in San Diego for about three months in 2004. She was eventually weaned off the machine but lived the remainder of her life in a nursing home with a breathing and feeding tube, unable to walk or talk. She died in 2017 at age 57. “I would be very upset if a doctor said I have to take her ventilator away for someone to live,” Curcio said. “But I can understand in triage this is what a doctor has to do. Would I like it? No. I would want to run away with the ventilator.” California vs. Texas PETITIONER RESPONDENT The State of California, et al. The State of Texas, et al. DOCKET NO. DECIDED BY 19-840 Case pending LOWER COURT CITATION United States Court of Appeals for the Fifth Circuit Citation pending GRANTED ARGUED Mar 2, 2020 Nov 10, 2020 ADVOCATES Michael J. Mongan for California, et al. Donald B. Verrilli, Jr. for the U.S. House of Representatives Kyle D. Hawkins for Texas, et al. Jeffrey B. Wall for the United States, et al. Facts of the case In 2012, the U.S. Supreme Court upheld the individual mandate of the Affordable Care Act (ACA) against a constitutional challenge by characterizing the penalty for not buying health insurance as a tax, which Congress has the power to impose. In 2017, the Republicancontrolled Congress enacted an amendment to the ACA that set the penalty for not buying health insurance to zero, but it left the rest of the ACA in place. Texas and several other states and individuals filed a lawsuit in federal court challenging the individual mandate again, arguing that because the penalty was zero, it can no longer be characterized as a tax and is therefore unconstitutional. California and several other states joined the lawsuit to defend the individual mandate. The federal district court held that the individual mandate is now unconstitutional and that as a result, the entire ACA is invalidated because the individual mandate cannot be “severed” from the rest of the Act. The U.S. Court of Appeals for the Fifth Circuit upheld the district court’s conclusion but remanded the case for reconsideration of whether any part of the ACA survives in the absence of the individual mandate. The Supreme Court granted California’s petition for review, as well as Texas’s cross-petition for review. CALIFORNIA, ET AL., Petitioners, v. TEXAS, ET AL., Respondents Oral Argument - November 10, 2020 John G. Roberts, Jr. We will hear argument this morning in Case 19-840, California versus Texas, and the consolidated case. General Mongan. Michael J. Mongan Mr. Chief Justice, and may it please the Court: In NFIB, this Court construed Section 5000A of the Affordable Care Act to create a choice: either obtain the health insurance addressed in sub (a) or pay the tax described in sub (b). In 2017, Congress didn't change sub (a) or sub (b); it just reduced the amount of the tax to zero. 5000A still presents a choice: either buy insurance or do nothing. That inoperative provision doesn't harm anyone, and it doesn't violate the Constitution. Now Respondents insist that the 2017 amendment requires the Court to tear down the entire ACA. But that theory rests on two untenable arguments. First, Respondents contend that Congress transformed sub (a) into a command when it zeroed out the tax. That reading is contrary to this Court's construction of the same text, it's at odds with how Congress and the President understood the amendment, and it would attribute to Congress an intent to do exactly what this Court said would be unconstitutional. Second, Respondents argue that if this single provision is now unconstitutional, then every other provision of the Act must also fall. But the starting point of any remedial analysis would be the strong presumption in favor of severability, and, here, the text and statutory structure powerfully confirm that presumption. After a year of debate about the future of the ACA, Congress made a single surgical change. It made 5000A unenforceable by eliminating the only legal consequence for not buying insurance, and it kept every other provision in place. So we know the rest of the Act should remain in effect if 5000A is held to be unenforceable because that's the very framework Congress itself has already created. Mr. Chief Justice, I welcome the Court's questions. John G. Roberts, Jr. Thank you, General Mongan. If -- I -- I'd like to begin with the standing issues. Is someone who does not follow the mandate and purchase insurance violating the law? Michael J. Mongan Not on our view, Your Honor. We -- we think that this is a inoperative provision and there is no legal command. But even -- even if the Court were to accept the plaintiffs' theory that it is a command, at the standing stage, they still can't establish standing because there's no threat or even any possibility that that command would be enforced against them. John G. Roberts, Jr. Well, so, if someone who doesn't purchase insurance pursuant to the mandate applies for a job down the road and has to fill out a questionnaire asking whether you've ever violated a law, which -- which box should he check, yes or no? Michael J. Mongan Well, I think, if their view, Your Honor, is that this is a command, I suppose they'd have to say that they violated the law. And if they had alleged that they were applying for such a job and that the employer was going to use such a form, then that might be a viable theory of standing. But, of course, there's no such allegation before us here today. John G. Roberts, Jr. Well, let's say Congress passes a law saying everybody has to mow their lawn once a week, and they even make a lot of findings about why that's a good thing. You know, it makes the country look neater, you get fresh air if you have to do that, it supports the lawn mower business, and -- but the fine for violating it is zero -- zero dollars. Do they have standing? I mean, the -- the neighbors will see that they're not obeying the law. The objectives of Congress will not be fulfilled. In other words, there will certainly be injury to that person, and I wonder why -- I wonder if, under your theory, that person would not be able to challenge the law. Michael J. Mongan I don't think that they would be on the theory that they've altered their conduct to comply with the law, and -- and -- and they've suffered some -- some injury. I think that follows from this Court's cases in Poe and Holder and American Book Sellers that it's not enough to say that I'm injured by complying with the law. You also have to show some real threat of enforcement. And, here, of course, Congress eliminated the only enforcement mechanism in 5000A. John G. Roberts, Jr. Thank you, General. Justice Thomas. Clarence Thomas Thank you, Mr. Chief Justice. General Mongan, if -- putting the Chief Justice's question in today's terms, I assume that in most places there is no penalty for wearing a face mask or a mask during COVID, but there is some degree of opprobrium if one does not wear it in certain settings. What if someone violates that command? Let's say it's in similar terms to the mandate here but no penalty. Would they have standing to challenge the mandate to wear a mask? Michael J. Mongan Well, Your Honor, I think, under this Court's cases, the question comes down to whether there is a real threat of enforcement. If it's just a bare command, I don't see how that would be consistent with cases like Poe and -- and Holder that have looked not just to the question of whether it's a command but to whether there is a threat or possibility of enforcement. Clarence Thomas Is that -- Michael J. Mongan Now perhaps -- Clarence Thomas -- is that consistent with some of our -- for example, our First Amendment jurisprudence where, without -- even without a penalty, you can have a chilling effect? Michael J. Mongan Your Honor, I think that there may be other legally cognizable theories of injury beyond the type articulated by the plaintiffs here, which is strictly focused on I'm complying with this command in a way that harms me. And in this case, you know, we're not in the First Amendment realm, but the states have suggested that there might be some theory of harm from the effects of third-party conduct. That might have been a viable theory, but their problem is that they have not established with evidence that's required on summary judgment that the amended 5000A, which is entirely toothless, actually does inflict such a harm on them. Clarence Thomas The -- the parties here, the Respondents here, really, they're arguing that -- as we had in the first ACA case, they're arguing that this -- the mandate, in combination with the other provisions, really caused their injuries. The -- what is curious here is we have become accustomed to deciding this at the standing stage, and this looks somewhat like a -- a -- a -a statutory -- the severability issue looks like a statutory construction matter. So could you explain to me why we would determine severability at the standing stage? Michael J. Mongan Well, Your Honor, I -- I don't know that the Court normally does determine severability at the standing stage. I suppose it could do that in the process of evaluating the federal government's theory of standing by severability. We don't think that that's a theory that's ever been endorsed by this Court. And it seems like it would create some serious tension with this Court's Article III precedent. But, typically, severability would be analyzed after a ruling on the legality of the provision. Clarence Thomas So the -- how would you say -- you would argue -- I see my time's up. Thank you. John G. Roberts, Jr. Justice Breyer. Stephen G. Breyer Well, I'll follow up on Justice Thomas's question. What -- what do you -- what -- how do you respond to the United States' theory of standing? Michael J. Mongan So it's a novel theory. It's never been endorsed by this Court. It would create a fairly massive loophole in Article III because, in the ACA context, for example, any American who's regulated by any provision of the ACA, biosimilars or the menu calorie count provision, would be able to challenge 5000A without showing that that provision actually harmed them. And I do think it's in tension with this Court's Article III precedent in several respects. First, what the Court has indicated in cases like DaimlerChrysler is that a plaintiff needs to establish standing for each claim and they need to show that they are injured by the allegedly unlawful conduct or provision. And, here, we'd be allowing, on the government's theory, plaintiffs to proceed without doing that. And, second, I think it would create a real concern about advisory opinions because, as I understand their theory, you'd have to accept that the provision is inseverable at the standing stage, then you'd proceed to adjudicate the legality of the provision, and then, after that, you'd get to severability. But, as we know from AAPC, most provisions are severable, so it would lead to a situation where courts are adjudicating the legality of provisions that don't actually harm the plaintiffs before them. Stephen G. Breyer Thank you. John G. Roberts, Jr. Justice Alito. Samuel A. Alito, Jr. Texas has offered evidence that the Affordable Care Act requires it to calculate Medicaid eligibility using modified adjusted gross income and that this method of calculation has greatly increased the number of persons on Medicaid in Texas, I think by about 100,000 persons. Why can't Texas seek a declaratory judgment that it is not required to calculate eligibility using that method? Michael J. Mongan Well, I think that the -- the problem is that they need to show that they're injured by the provision that they actually allege is unconstitutional. And that provision that Your Honor referenced is separate from 5000A. It would remain on the books even if 5000A were wiped away. So, unless the Court were willing to accept the -- the novel theory of standing by inseverability advanced by the federal government, I don't see how Texas's theories about many other provisions of the ACA can establish a case or controversy with respect to this claim challenging amended 5000A. Samuel A. Alito, Jr. Well, there is logic to that theory of standing. Why is it conceptually -- conceptually unsound? Michael J. Mongan Well, we -- we think it's unsound because it -- it then would allow the court -- allow a party to come in to -- to court and challenge, you know, any aspect of a large statutory scheme by just asserting a -- a theory that it's inseverable from one provision that harms them. But -but, Your Honor, if the Court wanted to -- to create that type of rule in its standing jurisprudence, that would just bring us to the merits. And the problem with the merits theory is that the plaintiffs here are positing that Congress created the very command that this Court held in NFIB was constitutionally impermissible, and that's just not a plausible construction when you consider that Congress was well aware of this Court's statutory construction. It relied on that choice creating construction and -- and used it to just render the provision inoperative. Samuel A. Alito, Jr. Well, let me -- let me ask this related question. If Texas were to fail to use that method, what consequences would follow? Michael J. Mongan If Texas were to fail to use the method for calculating Medicaid eligibility, Your Honor? Samuel A. Alito, Jr. Yes. Michael J. Mongan I -- I -- I don't know. I suppose it's possible that the federal government could bring some sort of enforcement proceeding against them or that an individual could -- could sue on the theory that they should be eligible for Medicaid. Samuel A. Alito, Jr. Well, I would ask a related question about what would happen if the IRS attempted to assess penalties on state employers for failing to comply with the reporting requirements in sections 6055 and 6056? In -- in a collection proceeding, could the state argue that it has no obligation to follow that because they can't be severed from the individual mandate? Michael J. Mongan Well, those are separate provisions. I suppose it's possible that a defendant could try and advance that as a defense in response to such a claim. But that doesn't mean that as a plaintiff they can go into court and establish an Article III injury tied to 5000A that's sufficient to exercise the Court's jurisdiction. Samuel A. Alito, Jr. All right. Thank you. John G. Roberts, Jr. Justice Sotomayor. Sonia Sotomayor Counsel, if I understand, and please tell me if I understand your point correctly, which is, if they have claims challenging the provisions that Justice Alito asked about, they should have brought that challenge, not a challenge based on the individual mandate, correct? Michael J. Mongan That's exactly right, Your Honor. And although they have discussed a lot of -- of the costs that flow from other provisions of the ACA, they haven't directly challenged those provisions, and they haven't advanced any theory as to why those provisions are unconstitutional. Sonia Sotomayor Second, counsel, give me your best argument why it would be unreasonable or not legally enforceable for plaintiffs to read the -- the individual mandate as a legal command. You -- you answered Justice Roberts' questions in a hypothetical, but I'm asking, are -- are you accepting that hypothetical or -- or that assumption -- not hypothetical, I -- I used the wrong word -- assumption, or do you have -- what's your best argument that it's not a command? Michael J. Mongan No, we're not, Your Honor. This Court authoritatively construed 5000A in NFIB as not a command. It said it was a choice between buying minimum coverage, as set out in sub (a), or making the alternative tax payment in sub (b). That's an authoritative construction that Congress relied on when it amended the provision in 5000A. Congress did not clearly indicate that it wanted to depart from that choice construction. Rather, it relied on the choice construction, zeroed out the tax as a means of making the provision inoperative. And I think this is a critical point, Your Honor. Congress was entitled to rely on this Court's authoritative construction, and we ought to give Congress the benefit of the doubt that it was doing what it said it was doing, preserving a lawful choice, rather than imposing the same command -- Sonia Sotomayor But, counsel, I -- that I have no quarrel with, but why should we presume that a common citizen who wants to comply with the law would make that assumption? Michael J. Mongan Well, I think that -- Sonia Sotomayor Or should make that assumption legally? Michael J. Mongan Well, Your Honor, I think that, to the extent that a common citizen is considering the intricacies of federal law, they would consider this Court's authoritative and very prominent holding about this provision in NFIB. And, of course, they would also consider the very public and repeated pronouncements of the President and members of Congress, who said we've gotten rid of the individual mandate and now you're allowed to freely choose what to -- to do with whether to buy insurance. Sonia Sotomayor One last question. If -- I understand your standing argument within the -- involving the states, but are you arguing that the states are not harmed by the cost of more people enrolling in insurance as a legal matter, or is it that as a factual matter, you think they have not yet demonstrated that they were harmed? Michael J. Mongan As a factual matter, Your Honor. We're on summary judgment. It was their burden to introduce specific facts showing that amended 5000A actually drives up their costs. They put in 21 declarations, but they didn't actually address that point. Sonia Sotomayor So how do you deal with their argument that you had the burden of coming forth with evidence? Michael J. Mongan Well, I just don't think that that's consistent with precedent. It's the plaintiff's burden at summary judgment to establish that they have satisfied the requirements of standing. John G. Roberts, Jr. Justice Kagan. Elena Kagan General, just going -- continuing on this point of the states' standing, I mean, why wouldn't it be right to say something like, look, you can expect that, as a result of this law, more people will buy insurance, even when there's no enforcement mechanism, just the force of law itself will encourage people to buy insurance, and Texas is now saying, well, that costs us money, it costs us money because of its effect on programs like Medicaid, and it costs us money because we have to send out these forms saying that you bought insurance? I think that those are Texas's two arguments. Michael J. Mongan Well, Your Honor, we think, under this Court's precedent in cases like Lujan, that might be enough at the pleading stage but that it wouldn't be sufficient at the summary judgment stage. But, frankly, Your Honor, if we're misreading those cases, we'd be happy to lose on the issue of state standing and litigate this case on the merits and then have Texas's rather minimal showing here set the bar for state plaintiff standing theories going forward. We just don't think that your cases allow it. Elena Kagan And -- and why is that? What case doesn't allow it? Michael J. Mongan Well, I think it's just the general principle that a plaintiff must adduce specific facts to establish injury in causation, as the Court indicated in Lujan. And -- and that, we would think, would -- would require something more than speculation or -- or supposition. Elena Kagan And how about on the individual plaintiffs' side? This is going back to the Chief Justice's questions. I mean, why isn't -- or why shouldn't the -- the force of law itself -- you know, a person can say, if the law says I need to do something, then I have to do something. And we -- we want citizens to be law-abiding. Why isn't that enough to create standing? Michael J. Mongan Well, I understand that point, Your Honor, but I think that that's contrary to what this Court has said in cases like Poe. I mean, there, the doctor plaintiff said, I'm looking at this law, it says that I can't give advice to my patient, and I think the law is unconstitutional and -- and it harms me because I'm not able to give this advice. And the Court said, well, that's not enough. You also have to show a real threat of enforcement. So I think that would be a departure from what this Court has indicated before, and it might open the door to quite a number of additional pre-enforcement challenges. Elena Kagan Thank you, General. John G. Roberts, Jr. Justice Gorsuch. Neil Gorsuch Good morning, counsel. Let me pick up where Justice Kagan left off. As I understand it, the United States could still bring a civil action to enforce the mandate under 26 U.S.C. 7402(a). Is that your understanding as well? Michael J. Mongan That's not my understanding, Your Honor. I think that this Court made clear in NFIB that the only legal consequence of not purchasing insurance is the requirement to pay a tax, and Congress has repealed or -- or zeroed out, rather, the tax. So there are no remaining legal consequences -- Neil Gorsuch Well -- Michael J. Mongan -- and I don't -- Neil Gorsuch -- let -- let -- let's just suppose for the moment that you're -- you're -- you're mistaken and -and 7402(a) would allow a civil enforcement action. Would that change your view about the individual standing? Michael J. Mongan Potentially, although I think what this Court has looked to is not just the possibility of an enforcement action but whether there is a -- a real threat of enforcement. And, here, I don't see how they'd establish that because, of course, the federal government has indicated that -- that there's no further requirement for individuals to purchase health insurance, at least at the highest levels of the executive branch. That's the signal that's sent out to the country. Neil Gorsuch So individual Americans would have to await an enforcement action before bringing a lawsuit challenging a federal statutory command? Michael J. Mongan Well, that's our understanding of your cases, Your Honor, but -- but, again, if we're -- if we're misreading the standing cases, we're very happy to litigate this question on the merits because we don't think that they have any plausible basis for reading this as a -- as a command. And we'd be happy to have the Court reach that question either at standing or on the merits. Neil Gorsuch And then, with respect to the states, again, picking up on Justice Kagan's point, I -- I -- I thought I heard you -- you agree that the theory of standing that -- that there's -- raised costs on enrollment-based injuries or compliance-based injuries could be enough to secure standing; it's just a failure of proof at the summary judgment stage. Is -- is that -- is that a fair summary of your position? Michael J. Mongan Yes, that follows from Department of Commerce. States can establish standing if the predictable -- if they -- if they actually identify specific facts showing that predictable choices by third parties are going to drive up state costs. But, unlike the Census case, where we had lots of expert declarations and specific facts and detailed government memoranda showing that connection, Texas here has just not introduced any specific facts indicating that amended 5000A would inflict a concrete harm on the plaintiff states. Neil Gorsuch So, if all we need is a substantial risk of a predictable effect of government action on the decisions of individuals, why isn't the Congressional Budget Office report stating that even after the penalty is removed, a small number of people will enroll because of a willingness to comply with the law? And it follows from that that there will be increased costs to the states. Michael J. Mongan Your Honor, I think the CBO report from 2017 is probably the best thing they have going for them on state standing. We don't think it's sufficiently specific. It's a -- it's a single sentence. And CBO didn't offer any data backing it up and -- Neil Gorsuch Do you disagree with it? Michael J. Mongan I -- I don't think that we have any basis to -- to agree or disagree with it. Neil Gorsuch So it's an uncontested fact -- Michael J. Mongan No -- Neil Gorsuch -- in the record? Michael J. Mongan No, I -- I don't -- I don't believe that's right, Your Honor. It doesn't say anything specific to the plaintiff states, and it doesn't say anything specific to plaintiffs who are eligible for state health plans. So we wouldn't think that that's enough at the summary judgment phase. But, again -- Neil Gorsuch Thank you. John G. Roberts, Jr. Justice Kavanaugh. Brett M. Kavanaugh Thank you, Mr. Chief Justice. And good morning, General Mongan. To pick up on individual standing questions of the Chief Justice and Justices Kagan and Gorsuch, suppose Congress passed a law requiring every American who lives in a house to fly an American flag in front of the house. There's no penalty, and the question then is individual standing. Under Lujan, you're the object of the regulation as a homeowner. It's a forced acquisition of an unwanted good or service. Why isn't that enough to give you standing, knowing that some people are going to do that, buy the flags and fly them, simply because Congress requires that? Michael J. Mongan Well, Your Honor, I think, if their theory was identical to what the individual plaintiffs advanced here, simply that we are actively complying with this and it is causing us harm, that would run into a similar problem with the Poe line of precedent. But there may be some other legally cognizable injury, especially in the First Amendment context. And we're not disputing that plaintiffs can try and advance those types of theories of injury. We just don't think that they are substantiated under the circumstances of this case. Brett M. Kavanaugh And on the CBO report that Justice Gorsuch mentioned, do you disagree that some people will follow the mandate and purchase insurance solely because of their willingness to comply with the law? Michael J. Mongan Well, I don't have a basis for disagreeing with it or agreeing with it, Your Honor. I think it is unlikely, as the dissenting judge below noted, that individuals who wouldn't already take advantage of the very generous Medicaid programs or state employer health plans, would do it solely because of an unenforceable command. But, again, if we're wrong on that, it just brings us to their untenable merits theory that Congress has created a command that this Court said was constitutionally impermissible, even as it was telling the American people that it was trying to get rid of or make inoperative this provision. Brett M. Kavanaugh On -- on the point that you mentioned that allowing standing, individual standing, here might open the door, are you aware of any other examples in the U.S. Code at least where Congress has enacted a true mandate, not something hortatory, but a true mandate with no penalties? Michael J. Mongan Your Honor, I'm not aware of that, and we don't think that's what Congress did here. We think that they -- they just created -- Brett M. Kavanaugh No, I take that point. I was just wondering if you were aware of an example. On the merits of the -- of the claim, under NFIB, obviously, it was justified under the taxing clause, but it now doesn't raise revenue. How do you respond to that point? Michael J. Mongan So, in light of the NFIB construction, what Congress did here was to create a -- a -- an inoperative provision. It doesn't require anybody to do anything. And Congress has routinely created inoperative provisions. It's done so since the founding. And they haven't been viewed as constitutionally problematic because they don't alter legal rights or responsibilities or bind anyone. Brett M. Kavanaugh Thank you. John G. Roberts, Jr. Justice Barrett. Amy Coney Barrett What should we make of the fact that Congress didn't repeal the provision? I mean, you said earlier repeal, and then you corrected yourself and said zeroed out. I mean, you're asking us to fun -- treat it as if it functionally has been repealed, but that's not what Congress did. Does that matter? Michael J. Mongan Your Honor, I think Congress understood how this Court had construed 5000A as a choice, and it understood that it would make the provision effectively inoperative to zero out the tax. And that was a reasonable thing for it to do. Obviously, it was operating under reconciliation procedures that allowed it to make the change compliant with the Byrd Rule, and CBO had told it that there was no material difference between repealing the provision and zeroing out the tax. Amy Coney Barrett Let me ask you another question that's related to some of the hypotheticals you've heard some far -- so far. You know, the Chief asked you about a mandate to mow the lawn, and, you know, Justice Thomas asked you one about forcing people to wear a mask. What if, in this case, you know, and as I understand it to be the case, you have to certify whether you've complied or not and then the government keeps track of that? So the government keeps track of whether you wore a mask or whether you purchased health insurance. Does that change your view of whether there's an injury? Michael J. Mongan Well, I'm not sure that there is an ongoing certification requirement at least in the tax forums, Your Honor. Perhaps that would change the analysis. But, if we get to the -- the merits, then I think that it -- it's plain that this is not an operative provision and there is no ongoing command, so even if that would establish standing, it wouldn't be enough to allow the individuals to prevail on -- on the merits. And, Your Honor, I would like to just make the point that, if the Court were to disagree with us on the merits and hold that this is a naked command, then the only proper remedy for that would be an order making the provision unenforceable and holding that it's invalid. That would completely address the -- the -- the problem. What would be deeply problematic for the plaintiffs, for the Petitioner states, and for the rest of the nation is if plaintiffs were allowed to leverage this single inoperative provision to tear down hundreds of other provisions that Congress -- Amy Coney Barrett Okay, counsel, let me -- let me just return to the question on the merits. So the states have said these Forms 1095B and C do require as part of taxes for one to certify whether or not one has maintained the minimum coverage necessary. Is that incorrect? Michael J. Mongan Well, Your Honor, the states do have to send out the forms. Those are required by separate provisions, and they serve continuing purposes related to the premium tax credit and the employer mandate that have nothing to do with 5000A. So those are costs that they would continue to have regardless of whether 5000A were on the books or not. Amy Coney Barrett And individuals don't have to certify whether or not they've maintained coverage? Michael J. Mongan Well, the IRS website makes clear now that there's no longer an obligation on the annual tax forms to check the box regarding coverage. They've gotten rid of that requirement. Amy Coney Barrett Okay. Thank you, counsel. John G. Roberts, Jr. A minute to wrap up, General. Michael J. Mongan Thank you. The plain intent of the 2017 amendment was to make 5000A inoperative and unenforceable, not to impose the very command this Court said would be unconstitutional. And the current statutory framework makes clear that Congress wanted every other ACA provision to remain in effect if 5000A were unenforceable because that's the precise situation Congress created. Respondents' inseverability theory would do violence to Congress's intent, invalidating hundreds of provisions that Congress chose to leave in place and that are functioning perfectly well without an enforceable 5000A. It would cause enormous regulatory disruption, upend the markets, cast 20 million Americans off health insurance during a pandemic, and cost the states tens of billions of dollars during a fiscal crisis. There's no basis for that result in text, intent, or precedent. John G. Roberts, Jr. Thank you, General. Mr. Verrilli. Donald B. Verrilli, Jr. Thank you, Mr. Chief Justice, and may it please the Court: Respondents are asking this Court to do what Congress refused to do when it voted down repeal of the ACA in 2017, but their argument is untenable. The 2017 Congress did not convert Section 5000A from a choice to a command. The amended statute doesn't require anything of anyone. And even if one misconstrues 5000A as a mandate, it's not plausible that the same Congress that had just eliminated any economic pressure to purchase insurance nevertheless thought that an unenforceable mandate was so vital that its invalidation should doom the remainder of the ACA. There is just no way that Congress would have preferred an outcome that throws 23 million people off their insurance, ends protections for people with preexisting conditions, and creates chaos in the healthcare sector. Respondents' arguments take constitutional adjudication as a game of gotcha to a whole new level. But this is not a game. This Court's precedents require respect for the constitutional role of Congress, and those precedents emphatically foreclose the outcome Respondents seek. John G. Roberts, Jr. Mr. Verrilli, eight years ago, those defending the -- the mandate emphasized that it was the key to the whole Act. Everything turned on getting money from people forced to buy insurance to cover all the other shortfalls in the expansion of -- of -- of healthcare. And the briefs here on the other side go over all that. But -- but now the representation is that, oh, no, everything's fine without it. Why -- why the bait and switch? Was -- was Congress wrong when it said that the mandate was the key to the whole thing, that -- that we spent -- spent all that time talking about broccoli for nothing? Donald B. Verrilli, Jr. So, Mr. Chief Justice, in 2010, I don't think there's any doubt that Congress made a predictive judgment about what would be needed to create an effective market. And they adopted a carrot-and-stick approach. There were a lot of carrots. You know, the policies were attractive, limited co-pays, no annual or lifetime caps. There were generous subsidies to draw people into the market, and it was easy to enroll because of the exchanges. But there was also a stick, the tax payment if you didn't enroll. And I don't think there's any doubt that the 2010 Congress thought that stick was important. But it's turned out that the carrots work without the stick. That's the judgment that the Congress made in 2017. That's what CBS told Congress -- what CBO, rather, told Congress, that Congress asked the CBO, what'll happen if we repeal the mandate outright? What'll happen if we zero out the tax? And CBO came back and said, whether you zero out the tax or you repeal the mandate, the effects on the market will be the same, the market will remain stable over the coming decade. And if one looks at the amicus briefs filed by the health insurance industry, the Blue Cross brief, the AHIP brief, if one looks at the AMA brief, all those briefs are confirming that that judgment was correct, that it turns out that the carrots worked without the stick and brought enough people in to the market to allow it to sustain itself. And, you know, Congress is allowed to learn from experience, empirical experience in the world, and adjust its policy choices. And that is what happened here. John G. Roberts, Jr. General Mongan was asked about whether the burden on the state was enough to support standing, and, of course, he had a little bit of a conflict representing a state, but -- but you don't. Do you think that that burden is sufficient? The paperwork burden essentially. Donald B. Verrilli, Jr. No, Your Honor, I don't, because the paperwork burden flows from provisions other than Section 5000A. And so, unless the Court were to accept the -- the standing through inseverability theory, the -- I -- I don't think there's a basis for finding -- John G. Roberts, Jr. Thank you -- Donald B. Verrilli, Jr. -- finding standing on the basis of that injury. John G. Roberts, Jr. Thank you, General. Justice Thomas. Clarence Thomas Thank you, Mr. Chief Justice. Counsel, the -- Justice Barrett asked whether or not the -- just eliminating the penalty -- the Act wasn't changed, the mandate provisions weren't changed. Just the penalty was eliminated. So was that all that was necessary to eliminate the centrality of this -- and importance of this provision? Because, when you argued the -when this case came up, as the Chief Justice said, some years ago, this provision was the heart and soul of -- of the Affordable Care Act. And I know the assessment has changed, but the provision hasn't changed, with the exception of the penalty. Could you explain why that penalty provision was so critical to the centrality of this provision? Donald B. Verrilli, Jr. Well, I -- I think, Your Honor, this does go to the heart of the severability question. And I -- I guess the argument that my friends on the other side are making is that the continued existence of 5000A sub (a), even though it's unenforceable and there's no tax anymore, is still central to the operation of the Act such that, under the Court's inseverability precedents, Congress would have preferred that the entire Act come down if that provision were struck down. And I think there are four reasons why that can't be right. First, you'd have to accept that the 2017 Congress said we're going to eliminate any financial pressure to stay in the market, but the moral suasion is still so important that the entire law has to fall. And I just don't think that's a plausible account of what happened in 2017. Second, Congress asked the CBO whether -- what would happen if they repealed, what would happen if they zeroed out the tax. And the CBO came back and told Congress the effect on the market will be the same either way. In other words, there will be no material difference between zeroing out the tax and flatly repealing Section 5000A sub (a). That's the context in which Congress acted here. Third, the -- the contemporaneous history is quite clear. The President, the congressional leadership, the bill sponsors, the committee chairmen, they all were shouting from the rooftops that they were repealing the mandate and giving citizens complete flexibility about whether to purchase insurance. That is not what you would be saying to the world if you thought that moral suasion was essential to keep the system going. And, finally, even if you thought that Congress really did have an interest in continuing moral suasion, that doesn't mean that they would have preferred to bring the whole ACA crashing down if 5000A were declared unconstitutional. In that respect, I think it's a lot like Seila Law. There, in contrast to here, you had actual evidence that Congress wanted the -- the CFPB director to be independent of the President, and that was -- here, it was just a hypothesis. There, there was evidence. But the Court made a judgment there that -- that Congress would not have preferred to see the entire CFPB come crashing down if that independence were eliminated. And I think that same kind of reasoning applies very strongly here. Clarence Thomas Thank you. Stephen G. Breyer I -- Justice Breyer. Can you hear me? John G. Roberts, Jr. Justice Breyer. Stephen G. Breyer Yes, you can. Yeah. John G. Roberts, Jr. Yeah, thank you, Justice Breyer. Stephen G. Breyer I -- I'm connected, I think. A question about severability. Since, at the time we heard, when this was first passed, that the mandate was absolutely crucial, as you pointed out, because, unless people buy insurance under this mandate, the other provisions, such as no -- you -- you don't have to worry about preexisting conditions, et cetera, won't work. All right. Why isn't that fact -- John G. Roberts, Jr. I'm sorry. Justice Alito. Stephen G. Breyer Something happened. I'm sorry. My machine didn't work. Samuel A. Alito, Jr. Yeah, I thought Justice Breyer was still on his time. John G. Roberts, Jr. No. Justice Alito. Samuel A. Alito, Jr. Oh, all right. Well, thank you. Mr. Verrilli, this does seem like deja vu all over again, but let me ask you this question about the theory of standing by severability. Suppose there's a very simple statute. It has two provisions, (a) and (b). I'm hurt by (b); I am not hurt by (a). (a) is unconstitutional. The statute has a clause that says if (a) falls, (b) falls too. Under those circumstances, would I lack standing to challenge (a)? Donald B. Verrilli, Jr. Well, that -- that hypothetical definitely tests the limits of our objection to standing through inseverability, and -- and I think it would be hard to maintain that position in the face of a statute like that. But what I will say, Your Honor, is this: That what it does point up, I think, is that, if the Court is going to validate the theory of standing through inseverability for the first time, that it ought not to do so combined with a presumption of inseverability at the standing stage, because even there -- the situations like the one Your Honor's hypothetical describes are going to be very rare. Most of the time, as the plurality opinion in AAPC acknowledged, severability will be the outcome. And so, if one presumes inseverability, even in cases like this one without an inseverability clause, then -- then I think that is, as General Mongan identified, an open invitation to advisory opinions, because you're going to grant standing on the basis of the injury caused by provision (b), hold provision (a) unconstitutional, and then say but it's severable and, therefore, the challenger doesn't get any relief. And so I think that's the problem. So I do think, if the Court really thinks that standing through inseverability is a valid theory of establishing Article III injury, that that ought to come with an analysis at the standing stage of the severability issue. Samuel A. Alito, Jr. What you have said about what Congress thought in 2017 perhaps illustrates the difficulty of trying to identify anything that was thought by the majority of Congress other than what it says in a law. A lot of people, a lot of members, in 2017 may well have thought that eliminating the penalty or the tax would not cause any harm and the whole Act could continue to function well without it, but others who voted for it may have done so precisely because they wanted the whole thing to fall. So I don't know what we can make of what was done in 2017 along the lines that you've said. Donald B. Verrilli, Jr. So, Your Honor, I think that question points up the wisdom of the analysis in the AAPC plurality to focus on objective indications, statutory text and context. And -- and beyond that, I would say I don't think it would be an appropriate thing for the Court to do to assume that there were members of Congress who were actually acting in violation of their oath to uphold the Constitution by voting for a provision they knew to be unconstitutional in the hope it would bring the law down. I just don't think that's a premise the Court ought to indulge in any case and certainly not in this one. And applying the objective factors, what we know is that Congress zeroed out the tax penalty, which is a very strong textual signal that Congress did not think that -- that -that 5000A sub (a) needed to -- was necessary to play any significant role in maintaining these markets. And, of course, the context here -- John G. Roberts, Jr. Thank you, counsel. Justice -- Justice Breyer, we apologize for the audio difficulties and we'll go back to you. Stephen G. Breyer Oh, that -- that's all right. It's not a problem. Go ahead. I'm good. John G. Roberts, Jr. Justice Sotomayor. Sonia Sotomayor Counsel, am I assuming your answer to be that, given a choice between or among -- because there could have been many choices -- between invalidating and -- the entire ACA and just zeroing out the tax, that the 2017 Congress's choice was just zero out the tax, correct? Donald B. Verrilli, Jr. Yes, that's manifest on the record, Your Honor. The -- there were efforts to repeal the entire ACA. Those efforts failed in the Senate. They were voted down. So we -- we know that that effort to repeal the entire ACA was voted down, and the only change made was this -- the zeroing out the tax in 5000A. Sonia Sotomayor And so, if a choice is yet again after NFIB declaring the individual mandate unconstitutional if one sees it as a command, the 2017 Congress has already told us that it doesn't want the rest of the Act to fall, correct? Donald B. Verrilli, Jr. That's certainly our position, Your Honor, and that -- and it just would be utterly inconsistent with everything Congress had before it, with the judgment Congress made, and -- and with the -- the wide announcement to the public that this amendment effectively repealed the mandate. Sonia Sotomayor Counsel, there's an intuitive feeling that if the individual mandate is struck down with respect to standing in the states, that they would have less reporting cost because -- or -- or less enrollees in their Medicaid and CHIPs program. That's their argument about standing, correct? That -- Donald B. Verrilli, Jr. That's their argument that, aside from inseverability, that's the only direct injury they claim -- Sonia Sotomayor All right. Would you -- Donald B. Verrilli, Jr. -- flows from 5000A. Sonia Sotomayor -- would you address that argument? Your co-counsel for the -- for the State seems to say there's no evidence that that's true or false. But I thought many of the briefs showed that that -- that it -- it was a faulty premise for other reasons. Do you agree with that? Donald B. Verrilli, Jr. Yeah. I mean, there -- there's definitely no evidence General Mongan went through that, that's correct. It was summary judgment. And under Lujan, they had a burden and they didn't meet it. But apart from that, basically, their argument, I think, boils down to what they claim is common sense, which is, you know, look, people are going to read this mandate and they're going to enroll and -- and that -- in Medicaid to satisfy it. But, you know, I -- I really think it's the opposite of common sense. I mean, the theory here is there were people out there who weren't enrolled in Medicaid before when the mandate was accompanied by a tax consequence and therefore were subjecting themselves to the tax consequence. Congress amends it, gets rid of the tax consequence, and those people say, oh, well, Congress got rid of the tax consequence, but, look, there still seems to be a mandate, so I'm going to go enroll in Medicaid now -- John G. Roberts, Jr. Justice Kagan. Donald B. Verrilli, Jr. -- and -- Elena Kagan Mr. Verrilli, I -- I understand your view that the appearance of how this law works have changed since 2010 or 2012, but we're -- we still have some relics of the old view, which is that the individual mandate was the key to everything, some relics of that in the law. And I'm pointing specifically at what the plaintiffs in this case sometimes call the inseverability provision, which is a finding, basically, that the mandate was essential to creating effective health insurance markets. And I guess I'm wondering, what do we do about that, the fact that that finding still exists in the law? Does that constrain us in any way? Donald B. Verrilli, Jr. Well, it's clear that the -- I think that it doesn't overcome the strong presumption of severability because it's not an inseverability clause. Now, if Section 18091 had said, if Section 5000A is declared unconstitutional, then 42 U.S.C. 300gg shall be deemed inseverable -- those are the -- the insurance protection provisions -- we'd have to make an implied repeal argument. I think we'd have a strong one. But we don't need to make that because the finding is not an operative provision of law. It's just a finding. And I think what's key is that what it expresses is the 2010 Congress's view about the state of affairs that existed in 2010. As a textual matter, the provision is addressing Section 5000A as it was originally enacted in 2010, that is, the insurance -- the -- the mandate to purchase insurance backed by the tax. Now the argument that my friends on the other side are making is that the 2017 Congress must have continued to agree with that finding because it didn't repeal the finding. But the 2017 Congress couldn't possibly have agreed that a requirement backed by a tax consequence was essential to an effective market because the 2017 Congress eliminated the tax consequence. And so I think that's very direct textual proof that the 2017 Congress did not share the view of the 2010 Congress expressed in the finding. And then it comes down to the question of, well, whether -- whether you're going to strike this entire law down because the Congress didn't go back and clean up that finding. But there was no need to clean up that finding because, as I said, it's not an operative provision of law, and it expresses a predictive judgment about the circumstances that existed in 2010 and what the 2010 Congress thought would be necessary to create the market. And textually, of course, the finding talks about the -- the requirement being essential to creating the market. And -- and by 2017, the market had been created. It was up and running. CBO -- CBO told Congress it could continue to run in a perfectly reasonable way if you eliminated this penalty. So I think that remnant from the -- from the finding -- John G. Roberts, Jr. Thank you. Justice Gorsuch. Neil Gorsuch Good morning, Mr. Verrilli. I'd like if we could just for a moment put aside standing and put aside your remedial arguments and just focus on the merits. This Court held that the mandate was a permissible exercise of the taxing authority because it produced revenue, at least some. That seems to have withered away, and we're left with the Commerce Clause and the Necessary and Proper Clause, which the Court foreclosed last time around. Can you help me with that? Donald B. Verrilli, Jr. Sure. I think it might help to -- for me to walk through how we see this, Your Honor. Congress started with the Court's definitive construction of the law in NFIB that the Court presumes Congress takes this Court's definitive construction as a given, unless it clearly indicates a desire to change it, and we don't think it did that. And so it starts on the premise that this is a lawful choice. It was a lawful choice between obtaining -- maintaining insurance or paying the tax prescribed in subsection (c). And Congress -- I don't think there's any doubt that Congress was acting within its powers when it amended subsection (c) to reduce the tax to zero. You can either think of that as inherent in the tax power or necessary and proper to it, but it has to have the ability to take that step. And so what remains is a statute that is inoperative and doesn't have any consequences for anyone. So it's effectively like a statute that's been repealed, and that's, I think, why so many in -- in Congress and the President described it effectively as a repeal. Neil Gorsuch Let -- let -- let -- Donald B. Verrilli, Jr. Now our sense -- Neil Gorsuch -- let's -- let's just put that aside for the moment, okay, and -- and if -- if we're focusing on the merits and assume the mandate is still something, it's on the books, what are the merits of that under the Commerce Clause? Why aren't you clearly foreclosed by NFIB? Donald B. Verrilli, Jr. Well, we're not making an argument under the Commerce Clause because of NFIB, of course. You know, our -- our view is that because it's an inoperative provision at this point, that it really doesn't have any more need for an enumerated power than when Congress enacts a hortatory statute. I -- I understand the premise of Your Honor's question is to disagree with that. I think that, to the extent the Court thinks an enumerated power is necessary, we -- we think it could be justified as necessary and proper to the taxing power because it leaves the framework of the -- of the taxing mechanism in place in case Congress wants to do it in the future. Neil Gorsuch Thank you. Donald B. Verrilli, Jr. But, you know -- Neil Gorsuch Thank you, counsel. John G. Roberts, Jr. Justice -- Justice Kavanaugh. Brett M. Kavanaugh Good morning, Mr. Verrilli. Assume standing for purposes of these questions, and, on the merits, the mandate as currently structured seems difficult to justify under the taxing clause for the simple reason that it does not raise revenue among others, so it's hard to call it a tax now. And as I think you were just indicating, you can't justify it under the Commerce Clause because five justices in NFIB said you -- you couldn't. Can you explain your necessary and proper argument just so I have that? You were -- you were on that. Donald B. Verrilli, Jr. Yeah. It's -- it's the one we -- it's the one we made in our brief, Your Honor. It's that the -- the Congress has -- the -- the way the -- the law exists now, Congress has maintained the structure that existed before the zeroing out of the tax in 2017 such that should Congress decide in the future that it needs to reimpose a tax, that it doesn't need to engage in a wholesale reworking of the law, it can just step back in and change the number again. And in -- in that respect, it's not entirely different. It's not the same. I'm not saying it's the same. It's not entirely different from a -- a tax law that Congress enacts where the tax is suspended for a number of years. And -- and we think that suffices. But I -- I do think, Your Honor, that what this points up, even if the Court disagrees with us here and even the Court -- Brett M. Kavanaugh Can I -- Donald B. Verrilli, Jr. -- thinks that -- Brett M. Kavanaugh I'm sorry to interrupt, Mr. Verrilli, but let's assume -- just for the sake of argument, assume I don't agree with that and then we get to severability. I tend to agree with you this is a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the Act in place, reading our severability precedents. One of my questions is, do you think that would have been the right result under the 2010 Act, or did that change in 2017, or -- or how would you assess that? Donald B. Verrilli, Jr. Well, I thought the amicus in 2010 made very strong arguments in favor of that result. But I -- I do think the relevant -- the relevant point of inquiry was what did the 2017 Congress think. And I do think with respect -- what would the 2017 Congress have preferred in the language of Seila Law and the AAPC opinion, and I -- I think that the answer, the -- the objective answer, to that is quite clear that if -- that the very same Congress that had zeroed out the tax and therefore removed any economic incentive, any economic suasion to get insurance couldn't possibly have thought that the provision was -continued to be essential to the operation of the overall system. Brett M. Kavanaugh Thank you. John G. Roberts, Jr. Justice Barrett. Amy Coney Barrett Mr. Verrilli, if the Court construes a statute in a particular way in order to avoid a constitutional question, wouldn't Congress be free to come back and say: No, no, no, that is what we meant, and in this case, for example, we did want to rely on the commerce power? In other words, why would a -- a -- an avoidance construction of a statute lock Congress in? Donald B. Verrilli, Jr. Neither an avoidance construction nor a -- a straightforward construction would lock Congress in, Your Honor, I agree with that. But, here, I think that the -- but -- but I do think the presumption applies either way. Once this Court has definitively construed a statute, that is what the statute means. And the Court assumes that Congress takes that meaning as a given and that -- and can rely on that construction by the Court when it amends the statute. And absent clear evidence that Congress wanted to depart from the Court's definitive construction, the Court -- the presumption is that the definitive construction stays in place. And I do think that that has to be the case here, because the only way to make sense of what Congress was doing and what, as I said, everybody involved in this process said Congress was doing was that they assumed that the choice-creating structure that was the definitive construction of the Act after NFIB remained and that, by zeroing out the tax, they relieved any perceived need by anyone to purchase insurance if they didn't want it. That's what everybody involved in this process said they were doing. Amy Coney Barrett But why can't we say that when Congress zeroed out the tax, it was no longer a tax because it generated no revenue, and, therefore, it could no longer be justified as a taxing power, so Congress was presenting it as a mandate which would have to be justified by the Commerce Clause? Donald B. Verrilli, Jr. Well, I think for the reasons I said, Your Honor. And I do think that the statements by the legislature -- by the legislators and the President and everyone else, I know that that's legislative history in a sense, but I do think there's wide agreement that those kinds of statements can be looked to as evidence of what -- of the meaning that a provision is capable of bearing. The meaning -- it's clearly capable of bearing the meaning that we've identified. And it seems like the only explanation for what Congress did here is that they assumed that that was its meaning. If they had assumed the opposite and wanted to impose a command, I presume they would have -- somebody would have said that. And -- and everybody said the opposite. And, of course, we all -- John G. Roberts, Jr. A minute to wrap up, Mr. Verrilli. Donald B. Verrilli, Jr. Thank you. The Affordable Care Act has been the law of the land for 10 years. The healthcare sector has reshaped itself in reliance on the law. Tens of millions of Americans rely on it for health insurance that they previously couldn't afford. Millions more rely on the Act's other protections and benefits. To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate. In view of all that has transpired in the past decade, the litigation before this Court, the battles in Congress, the profound changes in our healthcare system, only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date. Respondents' arguments in this case are anything but. They should be rejected. Thank you. John G. Roberts, Jr. Thank you, counsel. General Hawkins. Kyle D. Hawkins Thank you, Mr. Chief Justice, and may it please the Court: This case should be resolved on the basis of three operative provisions that appear in the U.S. Code today. The first is the individual mandate, which is a command to the American people to purchase health insurance that the federal government deems suitable. The second is a penalty provision that ensures that the mandate raises no revenue for the federal government. The third is a legislative finding enshrined in the text of the law itself declaring the mandate essential to the operation of the marketplace reforms that the ACA set out to achieve. The Obama administration's Department of Justice described that finding as a functional inseverability clause. Under NFIB versus Sebelius, the mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and, as such, it falls outside Congress's enumerated powers. And the legislative findings declaring the mandate essential require this Court to conclude, as did the district court below and the joint dissent in NFIB, that the mandate is inseverable from the remainder of the law. In asking the Court to hold otherwise, Petitioners are really asking this Court to ignore statutory provisions in the U.S. Code. Petitioners instead prefer to hypothesize about what various legislators might have been thinking when they voted to eliminate the penalty provision yet retain the mandate and the legislative findings. But that's just an argument that this Court should set aside the text of the law in favor of nontextual considerations. That gets things exactly backwards, as this Court has confirmed time and again in recent years. There is no basis to ignore the words that Congress enacted and that remain operative today. The proper course is to take Congress at its word and declare the mandate unconstitutional and inseverable from the remainder of the ACA. John G. Roberts, Jr. General Hawkins, on the severance question, I think it's hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act. I think, frankly, that they wanted the Court to do that. But that's not our job. Kyle D. Hawkins Well, Mr. Chief Justice, I would respectfully submit that it -- it is this Court's job to follow the text of the law as written. And I think it's critical that, in 2017, Congress could have excised the legislative findings in 18091, but it chose not to do so. It could have excised -- John G. Roberts, Jr. Well, but I mean -- I -- I certainly agree with you about our job in interpreting the statute, but, under the severability question, where -- we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question. Kyle D. Hawkins I don't think so, Mr. Chief Justice. I think what that establishes, or at least one reasonable reading of what happened, is that Congress wanted to give the American people a tax cut, and it went through lots of provisions of the Internal Revenue Code cutting taxes here and there, and one place it found to give the people a tax cut was in 5000A(c), but it wanted to keep that mandate in place because the mandate would still drive people to acquire insurance. And, indeed, it would have been quite reasonable for Congress to conclude that simply having a mandate will lead people to sign up for health insurance. As originally enacted, the Affordable Care Act included groups of people who were subject to the mandate but exempt from the penalty, including the very poor and members of Indian tribes. And I think that's an indication that Congress believed that simply ordering people to do something would get them to do it, notwithstanding any penalty that may be attached. John G. Roberts, Jr. General, you talk about the findings in the legislation and -- and treat them as if they were an inseverability clause. But it doesn't look like any severability clause anywhere else in the rest of the U.S. Code to me. Kyle D. Hawkins Well, Your Honor, there's certainly no magic words requirement for a severability clause or an inseverability clause. What we see in 18091 is a repeated emphasis by Congress that the mandate is essential to what they were seeking to accomplish. This is not some fleeting reference in -- in one provision. In subsections (h), (i), and (j), we see over and over again this -- John G. Roberts, Jr. Thank you, counsel. Justice Thomas. Clarence Thomas Thank you, Mr. Chief Justice. General Hawkins, I think we're shadowboxing a bit here. The -- the individual mandate now has no enforcement mechanism, so it's really hard to determine exactly what the threat is of -- of an action against you. Could you comment on that a bit and -- and just give us an understanding of what your injury is? Kyle D. Hawkins Sure, Justice Thomas. So we've offered seven different bases to conclude that the standing requirement of Article III is satisfied. I would submit that the easiest path to confirm standing is through the injury that the states have suffered. In -- in particular, the CBO confirmed in 2008 and 2017 that simply requiring people to sign up for health insurance would lead people to do so. And it's reasonably likely, based on that, that people will sign up for Medicaid who otherwise would not have done so because of the command to do so. Now General Mongan suggested that we've not put on evidence of that, and I respectfully disagree. We've put on the 2008 and 2017 CBO reports. The individual affidavits themselves, at pages 73, 76, and 77, confirm that individuals will sign up just based on a command to do so. And there are numerous State affidavits, including from Mississippi, Missouri, and South Dakota, at 148, 154, 187, talking about costs imposed by the mandate on the states. And we see the increased Medicaid enrollment set out in, for example, page 91 of the Joint Appendix, which is a Wisconsin affidavit. Now we would submit that, under Department of Commerce versus New York, that is more than enough to conclude that there's a substantial likelihood of at least one person signing up for a state Medicaid program, which, of course, would cause at least one dollar in injury and satisfy the standing requirement. And that's just our first of seven theories. I'm -- I'm happy to go through more if Your Honor would like. Clarence Thomas No, that's fine. The -- I'd like to move to, at what stage would you determine inseverability? The -- you know, there's a lot of talk that we should consider this at the standing stage, but, when I look at inseverability, I think of it as a statutory construction and something more suitable for the merits stage. But I'd like your comment on that. Kyle D. Hawkins Well, Justice Thomas, we think that this Court has described the severability analysis as part of the remedial analysis. And so we submit that the proper course here is to conclude that at least one plaintiff has standing for any of the reasons we've put forward and then to conclude that the mandate is unconstitutional. And upon doing so, we would submit that that's when the severability analysis comes into play. John G. Roberts, Jr. Justice Breyer. Clarence Thomas Thank you. Stephen G. Breyer Turning to the merits, are -- is your point -- what do you say about many, many statutes, I suspect, that do have or could have statements do this, don't do that, or do this, and they aren't -- they do not have any enforcement, they do not have any effect. World War I, defense statutes; buy war bonds. An environmental statute; plant a tree. A one of a thousand statutes commemorating something, beautiful cities day, clean up the yard. I mean, I can recall or I believe just dozens and dozens of statutes where Congress says something where normally we would say it's precatory. Now are all those statutes suddenly open to challenge? I mean, are none of them? If so, you lose. And if it's in between, which ones are and which ones aren't? Kyle D. Hawkins So, Justice Breyer, you asked whether they're open to challenge. I -- I guess I'd want to know what the -- Stephen G. Breyer We're talking on the merits, on the merits. If you have a merits claim, can you suddenly say, this is no good because people will do it? They'll buy war bonds. They will plant a tree. At least one of them will clean up the front yard, okay? And, thereby, I don't know, you see the point. It's a merits point. Kyle D. Hawkins So, Justice Breyer, I guess I'd want to look at the particular statute. We know from NFIB that the government cannot order people to enter commerce, people who are not already in commerce, and if another statute is like that, then I think NFIB would control. Stephen G. Breyer I'm sorry, you're missing the point. You're missing the point. On each of them, there is some constitutional argument that if there were a penalty attached, it would be unconstitutional. They take the penalty out from all my examples. Now no penalty. And do you say that they are nonetheless unconstitutional for whatever reason? If so, I think there will be an awful lot of language in an awful lot of statutes that will suddenly be the subject of Court constitutional challenge. Kyle D. Hawkins Justice Breyer, we don't dispute that inherent in the nature of sovereignty is the power for the government to speak, and so we don't challenge the idea of truly hortatory statements or Congress giving suggestions or recommendations. And if those statutes could be read that way, then that might change my answer. But what we have here -- and this is, I think, the critical difference -- it is not some suggestion, not some hortatory statement. It is the law of the United States of America today that you have to purchase health insurance and not just any health insurance, health insurance that the federal government has decided would be best for you. And that is certainly subject to challenge. Stephen G. Breyer All right. Thank you. John G. Roberts, Jr. Justice Alito. Samuel A. Alito, Jr. General Hawkins, can I ask you, I hope, two quick questions about your theories of standing. First of all, as to increased Medicaid costs because you are required to calculate eligibility based on modified adjusted income, what would happen if you didn't do that? Kyle D. Hawkins Well, we don't know for certain because we haven't tried, but I believe the federal government could bring some action against us, or somebody who should be eligible for Medicaid under the ACA but -- but isn't because of the way we've done the regulations, I suppose, would be able to sue us. Samuel A. Alito, Jr. Would there be penalties? Does the statute -- does the Affordable Care Act set out any penalties for -- for failing to do that? Kyle D. Hawkins I -- I don't know of a specific penalty or fine that would be levied against the state in connection with a failure to comply with the Maiji requirements. Of course, there are penalties that states can suffer in connection with IRS reporting and -and other things like that. Samuel A. Alito, Jr. Okay. As to the reporting requirements in sections 6055 and 6056, the consequences for failure to comply with those, I believe, would be a penalty under the Internal Revenue Code, which this Court has suggested is a tax for purposes of the Anti-Injunction Act. So how could that theory of standing survive the limitations imposed by the Anti-Injunction Act? Kyle D. Hawkins Well, the -- the provisions in 6055 and 6056 are -- flow from the mandate and are echoed in IRS regulations. The 2020 instructions, which were released recently, say that the states have to provide this information to the federal government about how they are covering as employers their employees. And that reporting requirement itself inflicts a pocketbook injury on the states. Those forms don't produce themselves. And our theory is that that pocketbook injury itself is enough to -- to satisfy Article III. I don't think that poses an AIA problem. And, indeed, those injuries, as the Fifth Circuit correctly held, flow from the individual mandate itself and are traceable back to the mandate. Samuel A. Alito, Jr. Thank you. John G. Roberts, Jr. Justice Sotomayor. Sonia Sotomayor Counsel, I -- I'd like to understand that a little bit more, your last statement. As I understood the theory you explained earlier of your standing, you say that you assume some people would comply voluntarily with a -- the legal command at issue here, the individual mandate. As I understand it, the -- the CB -- the CBO report predicted that only a small number of people would do that, the exact opposite of what it said in 2009, because of a willingness to comply with law. But you have to take it a step further. You have to prove that those -- that small number would include people who didn't enroll for Medicaid and didn't enroll for CHIPs when it was a legal requirement as a tax, but they would do so now after they're told there's no penalty for it, there's no tax for it. At some point, common sense seems to me would say: Huh? There's only a small number of people who would do it. That small number of people have to include Medicaid and CHIP recipients to affect you as the state at all. And they would, once they're told there's no tax, enroll now, when they didn't enroll when they thought there was a tax. Does that make any sense to you? Kyle D. Hawkins It -- it does make sense to me, Justice Sotomayor, under Department of Commerce versus New York. I would note that in that case as well, we were talking about a very small number of people who would unlawfully refuse to respond to the Census if it included a citizenship question. And the standing theory in that case was premised on assumptions about people breaking the law. Our theory in this case is at least in part predicated on assumptions about people following the law. Sonia Sotomayor The problem is -- Kyle D. Hawkins And I think that -- Sonia Sotomayor -- that your theory assumes that people are going to pay a tax and break the law by not buying insurance, but they wouldn't do it when the tax is zero. That -- that makes less sense. But moving on from that, on to the substance, okay? In NFIB, we said at least four times by my count that individuals cannot be compelled to buy health insurance under the Commerce Clause. They could only be asked to make a choice under the tax clause. Now the individual plaintiffs here still believe that there's a command, contrary to what NFIB said, that they must buy health insurance. What -- your only remedy would be to say that provision's unconstitutional under the Commerce Clause and it's unconstitutional under the tax clause. But I don't understand why you're entitled to greater relief when NFIB only says -- it already says it's unconstitutional. We could say it's unconstitutional now. But you're arguing that somehow us saying it a second time would convince Congress that it could command you to do something we said it couldn't do. Again, does that logic make sense? Kyle D. Hawkins It -- it does, Justice Sotomayor, based on the text of the law. The Court, of course, in 2012 upheld -- Sonia Sotomayor Well, we said -- we said in NFIB that we couldn't read the text of the law the way your clients want us to because it would be unconstitutional. Kyle D. Hawkins So, Justice Sotomayor, in III-A of the Chief Justice's opinion in NFIB, that -- that part of the opinion notes that the best reading of the individual mandate is as a command to purchase health insurance. And then, in subsequent parts, III-B and III-C, the Chief Justice explained that an alternative reading was fairly possible. That's what's missing today. There is no fairly permissible alternative reading of the law. And that leaves us with the conclusion in III-A of the Chief Justice's opinion that the mandate is best read as a command to purchase health insurance, and that is unconstitutional. And the text of the law says that the remainder of the ACA cannot work without that individual mandate. John G. Roberts, Jr. Justice Kagan. Elena Kagan Yes, Mr. Hawkins, continuing on on the merits, I -- I'm not sure I understand the position. In NFIB, we held that the ACAA -- that the ACA was not an unconstitutional command. So I would think that that has to be the starting point. Now, since then, there has been the change -- this change, and -- and -- and -- and in this change, where Congress reduces the penalty to zero, Congress has made the law less coercive. So how does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force? Kyle D. Hawkins Well, Justice Kagan, I -- I'd like to start with the premise of your question about the holding of NFIB. That holding is an alternative reading of the statute, a savings construction, predicated on the fact that at the time, the individual mandate could possibly be read as glued together with the penalty provision -- Elena Kagan Well, I think you have to -- Kyle D. Hawkins -- to -- Elena Kagan Excuse me, if I might interrupt, General. I think you have to accept that holding because that holding is what allowed the ACA to remain in existence all this time. I mean, so, however it was, that it was four plus one and what exactly that one said, the holding of the Court was that the ACA was not an unconstitutional command. Kyle D. Hawkins And -- and we would submit this Court is not bound by that holding today because the underlying predicate of that holding is no longer in the United States Code today. Elena Kagan Well -- Kyle D. Hawkins When Congress -- Elena Kagan -- the only thing that's changed is something that made the law less coercive, is what I'm suggesting. Kyle D. Hawkins Well, Your Honor, what -- Elena Kagan If you make a law less coercive, how does it become more of a command? Kyle D. Hawkins Well, Your Honor, the law was always best read as a command, as III-A of the Chief Justice's -- Elena Kagan Okay. So -- Kyle D. Hawkins -- opinion makes clear. Elena Kagan -- you're just disputing the premise of what we held in NFIB, which has, you know -- which I -- I don't think you can dispute, but let me go on. So 5000A(e) says that a class of people -and these are mostly poor people, who are subject to the mandate but have -- those people are subject to the mandate but have never had to pay anything. So do you think that in NFIB, what we really should have concluded was that those people were subject to a command, whereas everyone else had a lawful choice? Kyle D. Hawkins So I think that those people, the very poor and members of Indian tribes, I think that if at any point they had brought an as-applied challenge, I think they would have been entitled to prevail because Your Honor is correct, from day one, Congress has been ordering to do -them to do something which is beyond Congress's commerce power, and if -- Elena Kagan I mean, doesn't it seem exactly backwards, General, to say that those people who'd never had to pay a thing were subject to a command, when people who did have to pay, who felt the coercive power of government, did not, were not subject to a command? Kyle D. Hawkins Your Honor, that is Part III-A of the Chief Justice's opinion in NFIB, indicating that the mandate is best read as a command. Now, to some people, to many people, a savings construction was available at the time, but, in 2017, Congress effectively took these subsection (e) exemptions and expanded them to everybody, and the result is that there is no tax savings construction now available and we're just left with the command. Elena Kagan Thank you, General. John G. Roberts, Jr. Justice Gorsuch. Neil Gorsuch Well, I -- I'd like to pick up on that, on the merits, Mr. Hawkins. And good morning. As I understood Mr. Verrilli, his argument on the merits is that this is still necessary and proper to the taxing power. And that coercive authority is still in play; it's just that Congress has chosen to set it at zero and wants to -- the flexibility of retaining that provision in law because it might choose later to increase the tax again. What do you -- what do you say to that response? Kyle D. Hawkins I would say two things, Justice Gorsuch. Number one, this cannot be a tax because it does not raise revenue for the government and, indeed, cannot raise revenue for the government. In NFIB, the Court noted, citing cases going back to the 1950s, that the essential feature of a tax is raising revenue. My second response, though, is that if the Necessary and Proper Clause were to somehow save that, that would be giving Congress a police power. Everything is potentially a tax. And if Congress could justify any legislation on the grounds that, well, maybe one day we'll impose a tax, there would be no functional limit on Article I power. Neil Gorsuch Let -- let me turn to the remedial question here, and if you could address it with respect to the individual plaintiffs. They've asked for declaratory and injunctive relief. I guess I'm a little unclear who exactly they want me to enjoin and what exactly they want me to enjoin them from doing. Kyle D. Hawkins So the -- the declaration, which was Count I on which the district court has entered partial final judgment, was a declaration that the mandate is unconstitutional and inseverable from the remainder of the Act. The defendants include the United States, HHS, the IRS, and their respective commissioners. And so the judgment would be a declaration that the -- that the defendants cannot -- or, excuse me, the -- would be a declaration that the individual mandate is unlawful and inseverable from the remainder of the Act. Neil Gorsuch What do we do about the fact that usually declaratory judgments in aid of preexisting remedial jurisdiction, we'd normally require some proof that we can remedy a -- a plaintiff's injury more concretely than just a mere declaratory judgment? Kyle D. Hawkins Well, here, I think -- Neil Gorsuch We -- you'd have to show that there would be an injunction that would be available and then this is essentially an anticipatory action. Kyle D. Hawkins So two things, Justice Gorsuch. Number one, the United States in district court insisted that an injunction would not be necessary and that it would treat the declaration as an injunction. And we took them at their word. Second, if that's not good enough, Count V in our complaint is still pending in district court, and that is our request for injunctive relief. And that -- that's still a live issue before the district court. And we can pursue that remedy if necessary. Neil Gorsuch Thank you, counsel. John G. Roberts, Jr. Justice Kavanaugh. Brett M. Kavanaugh Good morning, General Hawkins. Assume for purposes of my questions that there is standing, just assume that. On the merits of the mandate before we get to severability, I want to follow up briefly on Justice Breyer's questions because my understanding might be a little different from his about the existence of other laws. I think, when I asked General Mongan, he agreed with me that there are no examples in the U.S. Code that he's aware of where Congress has enacted a true mandate to do something, to purchase a good or service, not something hortatory, but a true mandate with no penalties. Are -- is that right? Kyle D. Hawkins I think it is, Justice Kavanaugh. I can't think of anything. And it would make sense that that were correct because the Affordable Care Act, of course, was an unprecedented statute. I believe that Congress had never tried to do before what it did here. Brett M. Kavanaugh Right. With or without penalties, right? Kyle D. Hawkins I believe that's correct. Brett M. Kavanaugh Then, on -- on severability, if the mandate can't be justified or the mandate as currently structured -- I'm using that, the term "mandate" -- I understand the arguments from the other side about that term -- but the mandate as currently structured can't be justified under the Commerce or Taxing or Necessary and Proper Clauses, we get to severability, and looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest. So the question to you, obviously, is, how do you get around those precedents on severability, which seem on point here? Kyle D. Hawkins Justice Kavanaugh, I get around them by relying on the text of the statute. AAPC, Your Honor's plurality opinion for the Court, recognized that non-severability clauses can be statements of congressional intent. And as I noted earlier, the Obama administration's Department of Justice referred to 18091 as a functional inseverability clause. In that statute, we've got multiple instances of Congress insisting -- Brett M. Kavanaugh If I could just -- I'm sorry to interrupt, but inseverability clauses usually are very clear, and we did indicate what they look like in AAPC and we cited an example of what they look like, and, you know, Congress knows how to write an inseverability clause, and that is not the language that they chose here. So I -- I agree with you about focusing on the text, very much agree with that, but I just am having trouble seeing that as the equivalent of an inseverability clause. Kyle D. Hawkins Justice Kavanaugh, we would respectfully submit that that would elevate form over substance. In subpart (h), we see the mandate as essential to the larger regulation of economic activity. Sn subsection (i), it's essential to creating effective health insurance markets, and the same thing again in subsection (j). This is Congress saying over and over again that the mandate is essential to the operation of the law. And I don't believe there's any serious argument that Congress would have enacted the ACA in 2010 but for the individual mandate or without the individual mandate. Brett M. Kavanaugh Well, they did something to that effect in 2017, however. Kyle D. Hawkins Well, in 2017, they gave the American people a tax cut, but they wanted, evidently, to continue ordering people to acquire health insurance, and they left in place the finding saying that that requirement is essential. And it's worth -- Brett M. Kavanaugh Don't you think -- in 2017, do you read Congress as having wanted to preserve protection for coverage for people with preexisting conditions? Because it sure seems that way from the -- the record and the text. Kyle D. Hawkins Well, Your Honor, we would submit that the best approach is to just look at what's in the United States Code rather than get into the game of what different legislators might have been thinking and -- and saying in speeches and all that. And -- and, indeed, Congress certainly could have excised these findings. We've seen Congress amend legislative findings before in cases like Lopez, where Congress amended its findings in response to this Court's grant of certiorari. It's telling that Congress didn't do that here. And it's telling -- Brett M. Kavanaugh Thank you, counsel. Thank you. John G. Roberts, Jr. Justice Barrett. Amy Coney Barrett Good morning, General Hawkins. I want to go back to Justice Gorsuch's questions about standing for the individual plaintiffs. So let's say that we agree with you that the mandate, by making them feel a legal compulsion to purchase insurance, has caused them a pocketbook injury. Why is that traceable to the defendants that the individuals have actually sued here? I mean, I can see how it's caused by or traceable to a mandate itself, but how is it traceable, say, to the IRS or to HHS? Why is it their action that's actually inflicting the injury? Kyle D. Hawkins Well, so, Justice Barrett, we have sued five defendants, including the United States. And this Court has applied a longstanding presumption that the federal government acts in good faith. And by suing the five defendants who we have sued here, I think that's the best way of ensuring that the individual plaintiffs' injuries from the individual mandate and the other parts of the ACA that interact with the individual mandate will be fully remedied. Amy Coney Barrett But -- but doesn't it really seem that Congress is the one who's injured the individual plaintiffs here, and you can't sue Congress and say: Hey, you've put us under this mandate that's forcing us to buy insurance and that's harming us, right? Kyle D. Hawkins Well, we've sued the United States. It is the United States' law that the individual plaintiffs have to acquire health insurance that the United States thinks is good for them. Amy Coney Barrett Let me switch gears a minute and talk about state standing. There's some confusion or, I mean, it's my confusion based on differing positions taken in the briefs about these 1095B and C statements. So the House at page 31 of its brief says that the states would have to issue them regardless whether the mandate is intact in the statute or not, but the states point to the cost of producing these -- you know, these forms and mailing them out as part of what created their pocketbook injury. Who's right? Kyle D. Hawkins So they are correct, Justice Barrett, that 6055 and 6056 are independently on the books. But, if this Court were to apply the longstanding presumption that the federal government will operate in good faith and respect this Court's judgments, then it is reasonably likely that a declaration from this Court that the mandate is unlawful would prompt the federal government to in any way reduce the administrative burden that that paperwork causes, including going through and saying who had what kind of coverage during which month. So I -- I think that's enough to satisfy traceability and redressability, as the Fifth Circuit correctly concluded. Amy Coney Barrett Okay. Thank you, counsel. John G. Roberts, Jr. General Hawkins, you can take a couple of minutes to wrap up. Kyle D. Hawkins Thank you, Mr. Chief Justice. Just a couple points. On standing, the regulatory burden that is imposed today by the IRS forms is the most straightforward way to conclude that the states have suffered a pocketbook injury. And, in any event, Department of Commerce versus New York confirms that the states suffer another pocketbook injury as a predictable consequence of ordering people to sign up for insurance. Second, on severability, we submit that even if this Court is disinclined to invalidate every provision of the ACA, it should at a minimum agree with the Obama administration that under the text of the law, the mandate is inseverable from the three-legged stool. Third, on practical effects, I want to emphasize that we recognize the reliance interests at stake in this regulatory regime. The district court has stayed its partial final judgment. If this Court were to agree with us that the ACA is invalid, that stay could be extended for an appropriate time to allow the states and political branches of the federal government an opportunity to accommodate those reliance interests, as we saw this Court do in cases like Northern Pipeline versus Marathon Oil. Thank you. John G. Roberts, Jr. Thank you, counsel. General Wall. Jeffrey B. Wall Mr. Chief Justice, and may it please the Court: This case pushes at the line between faithfully following what Congress ac...