every need is taken care of. they have to pay absolutely nothing. and i know a retired lady, she doesn't even have to pay her insurance for medicare. and i just think that if they pass this -- let this bill go on the whole country will go bankrupt. out of this world that they even let them come up with this to begin with. the only way they came up it was bribery and paying off people because there were people that were going to vote against it in the congress, turns around whenever their state and their self get things, then they went ahead and voted for it. it shouldn't even be a law. this i without representation. >> so that's a great question. it sounds to me the person you're referring to that gets everything paid for is probably what we call dual eligible,

those are people who get covered by medicare and medicaid. they get medicare kofrnl, the primary payer, then medicaid picks up some of their health care. that group, though, they are the most vulnerable population, their age, blind, disabled, they have a low income. so that is one of the few groups that get the of their health care paid for through the system. >> all of today's washington journal available on line at c-span.org. we'll break away here as we get street bring you the first of the two cases argued today, oral argument from the case that looked at whether the individual mandate can be severed from the rest of the health care law when considering its constitutionality. we expect it to go about an hour and 45 minutes. the court will be under way shortly with the second half of today's hearings, today's cases can congress condition federal medicaid you assistance to the states on their adoption of new eligibility and coverage requirements. that case under way and we'll

air the audio from that at 3:15. up next, the first of today, the final day's hearings, of the supreme court look at the health care law. >> we will continue argument this morning in case 11393, national federation of independent business versus sebelius, and case 11400, florida versus the department of hhs. mr. clement. >> mr. chief justice and may it please the court. the individual mandate is unconstitutional, then the rest of the act cannot stand. as congress found and the federal government concedes, the community rating in guaranteed issue provisions of the act cannot stand without the individual mandate. congress found that the individual mandate was essential to their operation. and not only can guaranteed issue and community rating not

stand, not operate in the manner that congress intended, they would actually counteract congress's basic goal of providing patient protection but also affordable care. you can -- if you do not have the individual mandate to force people into the market, then community rating and guaranteed issue will cause the cost of premiums to sky rocket. we can debate the order of magnitude of that but we can't debate that the direction will be upward. we also can't debate -- >> that may well be true. the economists are going back and forth on that issue and the figures vary from up 10% to up 30. we're not in the habit of doing the legislative findings. what we do know is that for those states that found prices increasing, that they found various solutions to that. in one instance, we might or might not say it's

unconstitutional, massachusetts passed the mandatory coverage provision, but others adjusted some of the other provisions. why shouldn't we let congress do that if, in fact, the economists prove, some of the economists prove right that prices will spiral? what's wrong with leaving it in the hands of the people who should be fixing this, not us. >> a couple of responses, justice sotomayor. first of all, i think it's very relevant that congress had before it as examples some of the states that it tried to impose guaranteed issue and community rating, and did not impose an individual mandate. congress rejected that model. the question is quite right in saying it's not impossible to have guaranteed issue and community rating without an individual mandate but it's a model that congress looked at and specifically rejected. then congress's own finding and their finding, this is finding i., 43-a of the government's

brief in the appendix. congress found that having the individual mandate is essential to the operation of guaranteed issue and community rating. >> that's all it said it was essential to. i mean, i'm looking at it. the exchanges, the state exchanges are information gathering facilities that tell insurerers what the various policies actually mean. and that has proven to be a cost saver in many of the state who is have tried it. so why should we be striking down a cost saver? and if what your argument is was that congress was concerned about costs rising. or we assume they wouldn't have passed the information. >> i would think you sort of have to take the bitter with the sweet. if congress is trying to look at congress's goal of providing patient protection but also affordable care, we can't -- in take the things that save money and cut out the things that are

going to make premiums more expensive. >> i just want a bottom line is why don't we let congress fix it? >> let me answer the bottom line question. no matter what you do in this case, at some point there's going to be, if you strike down the mandate, there is going to be something for congress to do. the question is what task do you want to give congress. do you want to give congress the task of fixing the statute after something is taken out, or do you want to give congress the task of fixing health care. and i think it would be better -- >> we're not taking -- if we strike down one provision we're not taking that power away from congress. congress could look at it without the mandatory coverage provision and say this model doesn't work, let's start from the beginning. or it could choose to fix what it has. we're not declaring one portion doesn't force congress into any path. >> of course that's right, justice sotomayor, no matter what you do congresses have

options available. if you strike down only the individual mandate congress could say well, that's the last thing we wanted so we're going to strike down the rest of the statute and try to fix the problem. so whatever you do congress is going to have options. >> there such a thing as legislative inertia. >> that is what i was going to say, justice scalia. we all recognize there is legislative inertia. what's the best result in light of that reality? >> suggesting that we should take on more power to the court? >> no. >> congress will choose to take one path rather than another. that's sort of taking on to the court more power than one i think would want. >> and i agree. we're simply asking this durt take straight on the idea of the basic remedial inquiry. >> why do we look to the -- you sure we look to the -- i thought that you know, sometimes

congress says that these provisions, all the provisions of this act will be severable. hen the act won't work when the remaining provisions just won't work. how can you square that reality with the proposition that what we're looking for here is what would this congress have wanted? >> two responses, justice scalia. you can look at this court's cases on severability and they form you late this test differently. everyone of them talks about congressional intent. here's the other answer. >> that's true, but is it right? >> it is right here's how i would answer your question which is when congress includes the sever ability claus it's addressing it in the abstract. it doesn't say no matter which provisions you strike down we absolutely positively want what's left. >> right. the consequence of your proposition, would congress have enacted it without this provision, okay, that's the

consequence, that would mean that if we struck down nothing in this legislation but the what's it called, the horn husker kickback, okay, we find that to violate the constitutional proskription of vinality. when we strike that down, it's clear that congress would not have passed it without that. it was -- the means of getting the last necessary vote in the senate. and you're telling us that the whole statute would fall because the corn husker kickback is bad. that can't be right. >> justice scalia i think it can be which is to say the basic proposition that it's congressional inthaent cogoverns. everybody on this court has a different way of defining legislative intent. i would suggest the one common ground among every member of this court as i understand it you start with the tax.

>> let's start with the text. and you suggest and i think that this is late to there is a textual basis for saying the guarantee issue and the community rating provisions are tied to the mandate. and you pointed to where that was in the finalings. is there a textual basis for anything else? because i have been unable to find one. it seems to me if you look at the text, the sharp deciding line is between guarantee issue, community ratings on the one hand, everything else on the other. >> justice kagan, i'd be delighted to take you through my view of the text and why other things have to fall. the first thing is finding j on 43-a, as i read that that's a finding that individual mandate is essential to the operation of the exchanges. but there are other lings between guaranteed issue and community rating and the exchanges, and there i think it's just the way that the exchanges are supposed to work and the text makes this clear, they are supposed to provide a market where people can compare

community rated insurance. that's what makes the exchanges function. >> though the exchanges function perfectly well in utah where there is no mandate. they function differently but they function. and the question is always does congress want half a loaf. is half a loaf better than no loaf. on the exchanges it seems a perfect example that half a loaf is better than no loaf. the exchanges will do something, they won't do everything that congress envisioned. >> i think there are situations where half a loaf is worse and i want to address that. but before i do that if i can stick with just the exchanges. i do think the question that this skourt supposed to ask is not just whether they can limp along and they can operate independently but whether they operate in the manner that congress intended. that's where i think the exchanges fall down. the vision of the exchanges bass that if you got out of this current situation where house insurance is based on

individualized untds writing then it's going to be easy to see this is a silver pollecy, this is a bronze policy and this is a gold policy. pick which insurer provides what i think is going to be the best service based on comparable provisions. >> mr. clement, you said something you say a lot in your brief. the question is the manner in which it would have operated. and i think that's not consistent with our cases. and i guess the best example would be booker. where we decided not to sever provisions, notwithstanding that the sentencing guidelines clearly operate in a different manner now than they did when congress passed them. they operate as advisory rather than mandatory. >> but justice kagan, i should think booker supports our point as well. there are two aspects of the remedial holding of booker. in the first part which i think supports our point is where the majority rejects the report of

the decent which would have required nothing to be struck. this court said if you do that then all of the sentencing is basically going to be done by the jury and the prosecutors. that's not the manner congress thought this should operate. they make a different judgment about which provisions to cut out. but i think booker's consistent with this way of looking at it. certainly, that court reached that part of the opinion after they found that the must hire provision operated independent from the legislative -- >> there are so many things in this act that unquestionably okay, i think you would concede that reauthorizing the indian health care improvement act,

changes to the -- why make congress redo those? it's a question of whether we say everything you did is no good, now start from scratch. or to say yeah, there are many things in here that have nothing to do, frankly, with the affordable health care and there are some that we think it's better to let congress decide whether it wants them in or out. why shouldn't we say it's a choice between a recollecting operation which you are requesting, or a salvage job and the more conservative approach would be salvage rather than throwing out everything. >> two kinds of responses. i think there are some provisions that i would identify asing at the periphery of this statute. i'll admit that the case for severing those the perhaps the strongest. i do think it's different because if we were in here

arguing that some provision, like the provisions that you mentioned was unconstitutional i think you would strike it down and wouldn't think hard about severe ability. the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the difficulty are the very part of this act. then if you look at how they are int interconnected which are also connected to the employer mandates which is connected to some of the revenue offsets connected to medicaid, if the you follow that through what you end up with at the end of the process is sort of a hollow shell. at that point i think there is a strong argument -- we can't possibly think that congress would have passed that hollow shell without the -- >> but it would have passed parts of the hollow shell. it was just more convenient for congress to throw it in the middle of the 2700 pages than to

do it separately. i mean, can you really suggest, they cite the black lung benefits act. those have nothing to do with the things we're talking about. >> mr. chief justice, they tried to make them germane. some of their -- surely there are provisions looking for the next legislative vehicle and somebody's going to attach to the anything that's moving. i'll admit that. the question is when everything else from the center of the act is interconnect and has to go, if you follow me that far, would you keep this hollowed out shell. >> what is the test and this was with justice scalia, the corn husker, i need to know what standard you're asking me to apply. is it whether as a rational matter separate parts could still function, or, does it focus on the intent of the congress. suppose you had party a wants

proposal number one. party b wants proposal number 2. completely unrelated. one is airline rates, the other is milk regulation. and that they decide them together, the procedural rules, these have to be voted on as one, they are both passed. then one's declared unconstitutional. the other cannot break completely independently. now we know the congress would not have intended to pass one without the other. is that the end of it or is there some different test because we don't want to go into legislative history, that's intrusive, so we ask whether or not as an objective rational matter one could function. i still don't know what the test is that we're supposed to apply and this is the same question as justice scalia. >> justice kennedy, the reality i think this court's opinions have at various times applied both strains of the analysis. >> what test do you suggest that we follow if we want to clarify our juris prudence? >> i'm a big believer in

objective test, justice kennedy. i would be happy with you to apply a more textually based objective approach. i think there are certain justices more inclined to take more of a peak at legislative history. if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. i'm happy to focus the court on the objective textual history. >> that is what. >> whether the statute can operate in the manner that congress intended. >> no statute can do that because once we chop off a piece of it by definition it's not the statute congress passed. so it has to be something more than that. >> justice sotomayor, everyone of your case is, if you interpret it woodenly, justice blackman addressed this in the brock opinion that we rely on. of course it's not just -- doesn't operate exactly in the manner because it doesn't have all of the pieces.

you still make an inquiry, when congress link was to provisions and one without the other -- >> what's wrong with the presumption that our law says which is we presume that congress would want to. wouldn't that be the simplest most subjective test going past what justice scalia says we have done, okay, get rid of legislative intent all together which some of our colleagues and other context have promoted, and just say unless congress tells us directly, it's not severable, we should let them fix their problems. you still haven't asked -- answered me why in a democracy structured like ours where each branch does dferent things, why we should involve the court in making the legislative judgment. >> justice, let me try to answer the specificing question then the big picture question. the specific question you could do that, adopt a new rule that

saysrule. we presume. the presumption in some cases, some would call that judicial action. >> i think in fairness to get to the point you're wanting to get to you would have to ratchet up that a couple of ticks on the scale. >> what's wrong with that? >> one thing that's wrong with that which is still at a smaller level is that is inconsistent with every statement in your severability. >> it's not inconsistent with our practice, right, mr. clement. you have to go back decades and piece of d i'm not sure even legislation that we refused to severreason. >> i don't think that's right, justice kagan. i think there are more recent examples, a great example which sort of proves, may be a segue to get to my broader point, is

randall against sor rel. this court struck down provisions of the vermont campaign finance law but other provisions not touched by the theory that the court used to strike down the contribution limits but this court at the end of the opinion said there's no way to think that the verpt legislator would want this handful of provisions on the contribution side so we'll strike down the whole thing. and if i could make the broader point, i think the reason it makes sense in a democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. a great example if i dare say so is buckley. in buckley this court looked at a statute that tried to in a coherent way strike down limits on contributions and closely related expenditures. this court struck down the ban on expenditures, theft contribution ban in place, and for four decades congress has tried to fix what's left of the statute. largely unsuccessfully. where it would have i think worked better from a democratic and separation of powers

standpoint if the court would have said look, expenditures, you can't limit expenditures under the constitution, the contribution provision is joined at the hip. give congress a chance to actually fix the problem -- >> can i ask you one question, a practical question. i take as a given your answer to justice kennedy, saying let's look at it objectively and say would congress have intended this. this is the mandate in the community, this is title 1 and 2, the mandate, community pre-existing condition. rest of it. and when i look through the rest of it i have all kinds of stuffer in there and i haven't read every word of that, i promise. you pointed out, there is similarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas, et cetera. what do you suggest we do? ld master with an instruction, should we go back to the

district court.as i hear you no to the sg. you would like it all struck down but if we're supposed to apply the objective test, i don't know if you differ very much so. what that we do other than spend a year reading have you argue. >> what i would propose is the following, justice breyer. follow the argument this far and then you ask yourself whether what you have sleft a hollowed out shell. >> i would say the breast feeding act, the getting doctors to serve underserved areas t biosimilar thing and drug regulation, the class act, those have nothing to do with the stuff that we're talking about yesterday and the day before. okay. so if you tell me at that level sure, they have nothing to do with it. they can stand on their own. the indian thing about helping the underserved native americans, all of that stuff has nothing to do. black lung disease, nothing to

do with it. okay. so you know what you have there, a total off the cuff impression. so that's why i'm asking you what should i do. >> what you should do is let me say the following. which is follow me this far which is mandatory individual mandate is tied as the government suggests to guaranteed issue and community rating but the individual mandate guaranteed issue and community rating together are the heart of this act. they are what make the exchanges work. the exchanges in turn are critical to the tax credits because the amount of the tax credit is keyed to the amount of the policy price on the exchange. the exchanges are also key to the employer mand the employer mandate becomes imposed on an employer if one of the employees gets insurance on the exchanges. but it doesn't stop there. look at the medicare provision for dish hospitals. these are hospitals that serve a disproportionate share of the needy. this isn't in title 1. it's in the other part you had. it doesn'tmakate community rati guaranteed issue. >> can i ask you this, mr.

clement. what would your fallback position be if we don't accept the proposition that if the man date is declared unconstitutional, the rest of the act every provision has to fall. other proposed other dispositions have been proposed. there is the solicitor general's disposition, the recommended disposition to strike down the guarantee issue and community rating provisions. one of the says strike down all of title one, strike down title 1 and 2. what would you suggest? >> well, suggest, justice, that you sort of follow the argument through and figure out what in the core of the act falls, and then i guess my fallback if what's ndint a hollowed out shell you if you want a sort of practical answer i do think you could just use justice breyer's off the cuff as a start and say title 1 and a handful of related provisions that are very closely

related to that are really the heart of the act, the -- >> you could strike one and leave the other. but at a certain point -- i'm sorry. >> in theish. >> at a certain point i think the better answer might be to say we've struck the heart of this act, let's just give congress a clean slate. if it's so easy to have that other big volume get re-enacted they can do it in a couple of days, it won't be a big deal. if it's not because it's -- but i mean you can laugh at me if you want. but the point is i'd rather suspect it won't be easy because i spupt if you dug into that there would be something that was quite controversial in there and couldn't be passed quickly and that's the point. >> the reality of the passage, this was a piece of legislation which there was had to be a concerted effort to gather enough votes so it could be passed and i suspect with a lot of these miscellaneous provisions that justice breyer was talking about that was the price of a vote. put in the indian health care

provision and i will vote for the other 2700 pages. put in the black lung provision and i'll go along with it. that's why many of these provisions i think were put in, not because they were unobjectionable. so presumably what congress would have done is they wouldn't have been able to put together, cobble together the votes to get it through. >> maybe that's right, mr. chief justice, and i don't want to spend all of my time fighting over the periphery because i think there are some provisions that i think you would make as an exercise judgment, a judgment that once you have gotten rid of the core provisions of this act that you would then decide to threat periphery fall with it. if you want to keep the periphery, that's fine. what i think is important though as to the core provisions of the act which aren't just the mandate, community rating and guaranteed issue but include the exchanges, the tax credit, medicare and medicaid, as to all of that i think you want to strike it all down to avoid abu reserve the remainder of my time. >> thank you, mr. clement.

mr. niedler. >> thank you. may it please the court. there should be no occasion for the court to consider issues of severability because as we argue the minimum coverage provision isfully consistent with article 1 of the constitution. but if the court were to conclude otherwise it should reject petition areas sweeping proposition that the entire act must fall if this one provision is held unconstitutional. as an initial matter, we believe the court should not even consider that question. the vast majority of the provisions of this act do not even apply to the petitioners but instead apply to millions of citizens and businessesre the c. >> how does your probably actually work? your idea is that they can take care of it themselves later. do you contemplate them bringing litigation and saying, i guess the insurers would be the most obvious ones, without the

mandate, the whole thing fallsg greater costs so the rest of the law should be struck down. that's a whole other line of litigation. >> i think the continuing validity of any particular provision would arise in litigation that would otherwise arise provision by parties who are -- >> cause of action is it. i never heard of a severability cause of action. >> in the first place the point isn't that there has to be an affirmative cause of action to decide this. for example, to use the medicare reimbursement issue, one of the things this act does is change medicare reimbursement rates. the place where someone adjudicates the validity of medicare reimbursement rates is through the special statutory review procedure for that. the same is true of the anti-injunction act -- >> there are some provisions which nobody would have standing to challenge. if the provision is simply an