Which rick hires all americans all which requires americans to have Health Insurance. This is an hour and 45 minutes. You may proceed. Thank you, your honor, may it please the court, i will be sharing my time with several and i willsentatives be going last. The court on the supplement a briefing order. We think the defendants were clearly injured by the judgment and have a standing to appeal it. You might want to move the microphone. Youre not. Is this better . I will speak louder. Thank you. After the supplement a briefing, it is clear that all parties agreed this court has appellate jurors diction under bens are. That is because the federal government is now committed to continue to forcing the informal care act until the court enforcing the Affordable Care act until the court orders are not to do so. He first legal arm the participation of the states and house of representatives ensures that there will be an adversarial presentation of the issues in this case. Turning to the other issues in this case, the central feature of this appeal is that when your standing, the interview being her states intervenor states, are you necessarily regarding the plaintiff states. Nope so your hair telling us that the state of texas does not have standing to litigate here. Explain that what is the distinct and that licenses you with standing here, but not the plaintiff states . Weree judgment below if it to take a fact would cost the states hundreds of billions of dollars in federal funds. The state plaintiffs rely on a theory of standing that they have not moved up. They argued that the individual mandate, even though it has been stripped of its alternative tax penalty, is going to cause people to enroll in their medicaid programs. But they have not produced any evidence to support that suggestion. That makes this case similar to this courts decision in crain v johnson. What held that mississippi did not have standing to challenge the docket directly. In that had not shown that there were daca recipients. Dont they also cite the cbo report that talks about the expenditures they can reasonably expect to incur . That report concludes only that there are some small number of people, who even once the alternative tax has been zeroed out, will maintain Health Care Coverage. So they only have a little standing . They have not proved the final link in the causal chain. To show that there are individuals like that in their states who are enrolling in their medicaid and schip programs. It is that link that they have not proved up. To go back to the first decision the record here similar that ms. Help that that the court held that mississippi did not have standing. That came to this court on a motion to dismiss. We are here on a Summary Judgment. The state plaintiffs burden was hired here. I think the records are similar. Actually, in that case, did it judge owen wright, in her concurrence, that mississippi even earned its proper standing . And that it would be a different might be more similar to one of the u. S. Supreme court cases, if this is if he had urged its standing. Sometimes things that have not yet occurred can still give rise to standing. That may be the case, but they have the burden of coming forward and showing that there is evidence that we can believe people, because of a penalty ast mandate are going to mandate without penalties, are going to enroll. We can get back to your clients standing, before we do, can i ask about the record . You said the record was similar in that case. Thent to make sure crankcase to this case. I want to make sure what youre all calling those Summary Judgment as. I have this exhibit a, which are all the declarations from all the states as well as the individuals and then various people who work at the states making certain declarations. This is in the evidentiary record for Summary Judgment, correct . Yes your honor. Was there ever any motion to strike, or to say that some of these are conclusory, or anything of the sort that would have evidentiary league coupled. Th exhibit a not that im aware. Infects your client did not argue that there was a lack of standing. In passing and oral argument, it was never pleaded . Our response for Summary Judgment, we did not raise the standing issue. Did did not ask the courts to allow us to argue it further. We argued it the hearing your honor. If in fact, as you argue the record were insufficient to support such standing, that would be because this, alone, is not enough, or because there is judgmentrary summary evidence. But there is no contrary Summary Judgment evidence, is there . To be clear, our contention is that it is not enough. So you are not saying there is a fact issue on the question. That is correct. So we do not need to remand for a determined trial on the standing issue. In our view the correct. In our view, theres not enough evidence to demonstrate their enough people enrolling in the Medicare Program or to program because of the zeroed mandate tax. Can we talk about standing more . You believe you have standing because of the judgment that might take a fact, but if a declaratory judgment that we are here on would take a fact, how would that impact your client . That is not an injunction, it is just a declaratory judgment, aavis these parties, partial Summary Judgment. Judge oconnors understanding was that it did have an injector effect. He said that it was not an injunction several time. Thats why he issued a save appeal, and as part of his determination is judgment concluded that his determination or judgment would harm us. We have under stood as judgment is binding the United States with respect to our states. That it was not binding with respect your state area do you agree that you would like standing in this appeal . Know for two reasons first i would want to know the scope of there is no to remedy. It is just a declaration. Standing was just a declaration, how do you have standing . And if the federal government is not going to structure its Affairs According to that declared tory judgment, and is not going to start cutting off our medicaid funds are making other changes, then we might not have standing, just based on the practical harm. Do think we would suffer legal harm in the forms of collateral consequent is. But this court does not need to answer those questions because all parties agree that it has jurisdiction under windsor. If i might, turn to the merits. The central feature of this appeal is that when congress adopted the tax cuts, it made the in visual mandates unenforceable. That means that the individual mandate no longer requires anyone to do anything. That it can be upheld as either a preparatory provision, similar to those that congress adopts that no one things causes a constitutional problem. Are thereher statutes out there that use mandatory language like the one here, that are now justins for Better Living or Something Like that, that use the word, precatory[ . ] that the citizenry should know that they do not need to really follow. Just go forth and do good. This statute should be ored if you so choose there are other provisions in the u. S. Code that are not binding or not operative. Severability clauses include the word shall, but courts do not treat them as binding there also in operative positions section 5008,e subsection c, too, b, xi, which defined the amount of the alternative tax for this when he 14 taxable year. That uses the word shall and has no effect we find ourselves in an unusual situation. The virtue of our position of understanding this is either a or part of aause tax clause, is that it would allow this court to uphold the [ ] whenmandate it will save it from the unconstitutionality, courts have a duty to adopt that construction. But youll agree that congress could have included a severability clause such as what you mentioned a few minutes ago, when it adopted the aca in 2010, itdnt have done so . Seemed they did the opposite, saying it is a comprehended sip overhaul. Could congress have said, by the way, we think these provisions are such excellent ideas and helpful to the public, that if any of them go by the wayside, we want all of these, the remainder to continue to apply. What the Supreme Court has said is that where congress is silent on that point it is silent. It does not create a presumption for or against severability. It does bring the severability question here. Can we talk more about the merits . Why is a command not a command, if the cbo says it is for some people. Indeed, blackstone himself, says that people follow the law just to follow the law, because they want to be good citizens. So with out regard to whether there is a penalty, why is in a command a command . The court said that this provision even though it includes the word shall, does not have to be read as judge elrod because it was in conjunction with the tax. The chief justice also said that the most natural reading of the provision was as a command. So if you no longer have the tax , why isnt it unconstitutional . Mr. Siegel because it is possible to still understand this as a precatory provision that does not create rights or obligations. Judge elrod how can it be precatory if the most natural reading of it is a command that does require action by the federal government, telling someone to buy insurance. Mr. Siegel because your honor, this is alternative reading available to the court. It is in a usual reading. We think that better course for this court to chart is the one laid out by an f id, to adopt this understanding of an individual mandatory as either precatory or judge elrod it does not apply. This is no longer a tax. Then what happens . Mr. Siegel then there are no legal consequences for going without Health Care Coverage. Judge elrod youre violating the law. Mr. Siegel and thats what and if id makes clear. You are not violating the law if you do not buy Health Insurance. Visuals who do not buy Health Insurance, nothing bad will happen to them. There are no legal consequences. Judge elrod are you saying we are not able at liberty to uphold this based on the Commerce Clause or the necessary and proper because, given that there have been five votes in the courts against those propositions . Mr. Siegel we think the best way to understand this is as a precatory judge elrod but do you agree . Judge engelhardt i asked if you agree with that proposition. As siegel it can be upheld a taxing power or as necessary and proper using the necessary constructs that an f iv did. The power to keep this kind of provision on the books, it can look to the taxing power. Section 5008 still contains references to the number of dependents. It still has subsection g, which says the irs cannot bring criminal prosecutions. Of course, it is not generating revenue anymore. But this court rejected the argument that a law must generate revenue at all times to be held as a taxing power. Judge engelhardt does the 2017 zero in thehange to 5000 be, is that permanent, accident absent further action from congress, or doesnt have an expiration . Judge engelhardt it seems like a yes or no judge elrod and make sure you have time to talk about severability. We want to talk about that too. Mr. Siegel thank you your honor. No. Without further action from congress, that amount will be set at zero. Question,severability the Supreme Court has instructed, that the severability inquiry is one of congressional intent. Here, we think the answer is straightforward. In this case, we know what congress would have done by examining what it did in the text note tutee cja. It rendered the mandates unenforceable by zeroing out the only legal consequence for going without Health Care Coverage, and at the same time chose not to appeal the preexisting protections or other reforms made by the formal care act. And with that action, your honors, converse expressed its views that the individual market , and indeed the entire of oral care act, cant operate without an enforceable individual mandate. We think that that is all this court needs to know to resolve the severability question. Judge engelhardt king versus veryll opinion seems to be specific in its language, particularly with regard to the guaranteed issue, the Community Rating provision, the individual mandate, and i know you have read that, as have most people involved. But it seems like the language used is pretty heavy when it comes to those provisions being interlocking or intertwining. How do we unravel that in light of the king versus burwell language . Mr. Siegel that reflected the view of the 2010 congress. The question here is not about what congress wanted in 2010, but what the Supreme Court said in 2015. It is instead what congress did in 2017. With its actions in the text of made theja, congress initial mandate unenforceable, and chose to leave the rest of the aca provisions. Judge engelhardt were they in a reconciliation process at that point . Were they limited to what they could do written regard to the tax bill in 2017 . Mr. Siegel your honor that does not change the analysis here. The relevant thing is that congress made that in visual mandate unenforceable. The act the tax unenforceable, not the mandate itself. Judge engelhardt word had reached congress from the Supreme Court building that the decision had been rendered. Surely congress knew that the linchpin that Justice Roberts described had been adjusted. Drew agel and Congress Different determination in 2017. Judge elrod how do you know that . How do we know some members of congress did not say aha, this is the Silver Bullet that is going to undo the aca, or obamacare if you prefer. So we are going to vote for this, just because we know it is going to bring it to a halt. Because we understand the tax issue, and it is no longer tax. Mr. Siegel your honor, that would be imputing to congress and intent to create an unconstitutional law. Memberse were several who voted for the tax and jobs act and said we are not repealing the preexisting protection conditions, we are not repealing the subsidies. That would mean they were misleading the American Public and their constituents when they said those things. Judge elrod the only way to know what congress intended is what they say through their legislation. And they left, in place, the mandatory nature of the mandate. Can you help me with that . Mr. Siegel they made the mandate unenforceable getting rid of the tax. And it is clear that congress intended for the two things to be one and the same. The house of representatives replied on page five, several statements from emerson congress including speaker ryan, he said with this tax bill, we are quote, repealing in visual mandate. Judge elrod those faces in the crowd, whether they are friend they are not, can you tell. Honor, you yes your can. They Supreme Court in resolving severability questions has that there was no practical difference between zeroing out that tax and repealing the in visual mandate. Judge engelhardt where are the statements from those who voted in 2010, saying that, no worries, the individual mandate is not really a mandate. Even though it says shall, we are voting on this today, and is anns, you still, this option that you can pay the tax or by the insurance. Since you are using quote, and i have to tell you i am not a fan of using quotes or elected officials who say a lot of reasons, to support. Im not a fan of using that to support an opinion in court. Because, as judge elrod said, we depend on the law expressing the will of the legislature. But where are the statements, since youre bringing up all they statements, where the statements from 2010, saying do not worry about the individual mandate, it is actually not something that requires you to buy insurance. . Mr. Siegel i do not know where the stations might be. But our point here does not rely on statements of members of congress. All you have to do is look at the text of the tc ja and see that congress zeroed out the only thing that made the individual mandate enforceable. And that is the beginning and end of the severability analysis. The other thing we pointed to, the from members of 2017 congress and cbo report, the appeal, are supporting pieces for us. This courts analysis can begin and end with the tc ja. Maybe over my time, but if i might. Judge elrod you may, but i asked him questions. What it would you three more minutes, and give the other side three more minutes. Mr. Siegel thank you your honor. Judge elrod you may be heard. And then i will ask a question. Mr. Siegel another point i would like to make. In other frame the Supreme Court has used to discernment determine severability questions is one of functional similarity. Mandate the individual but leave the rest of the Affordable Care act in place, it would be creating a statute that is not just inconsistent with but one is designed, that is the way congress designed things in 2017. The other contextual factors of imprinting printed to here, including, importantly, the factors we at have pointed to hear, including failed efforts at repeal. Those are powerful indications that if the remedy is needed here, the one most consistent with congresss intent is to render the individual mandates and declared unenforceable. Judge elrod can we turn back to the standing of the plaintiffs for moment. , one in this declaration of the states, i think missouri, says that it has to pay 50,000 the year 2021 to send out this form, 1095 b to everyone. Why isnt that a tangible cost . That would render standing for the state of missouri . Mr. Siegel because that cost is imposed not by section 5008, by other provisions judge elrod . Judge elrod they say they have to do it because of this. There is nothing from the record that says from an irs official or from an expert you have hired , that says it is really because of some other reason. So why wouldnt the Summary Judgment record control on that point . Mr. Siegel respectfully, your 6056 as thend reason they have to issue these the, not section5000a. National federation of the blind i