doesn't hurt anybody except the taxpayer, but the taxpayer doesn't have standing. that just continues. even though it should -- it is so closely aligned to what's been struck down that it ought to go as well but it has to continue because there is nobody in the world that can challenge. can that possibly be the law. >> i think that proves our point, that this court has said just because there is no one may have standing to challenge and particularly like tax credits or taxes which are challenged only after going through the anti-injunction act, just because no one has stand doesn't mean som -- >> but those are provisions that have been legitimately enacted. the wholish view here is whether these related provisions have been legitimately enacted or whether they are so closely alied to one that has held to be

unconstitutional that they also ve enacted. you can't compare that to cases dealing with a statute that nobody denies is constitutional. >> this case is directly parallel to the prince case in our view. in that case the court struck down several provisions of the brady act but went on to say it had no business addressing the severability of other provisions that did not apply to the people before -- >> what he's thinking of is this, i think justice scalia is thinking, i suspect, of imagine a tax which says this tax in amount y goes to purpose x, which will pay for half of purpose x. the other half will come from the exchanges somehow. that second half is unconstitutional, purpose x can't possibly be carried out now with only half the money, does the government just sit there, collecting half the money

forever because nobody can challenge it? you see, if it were inextricably connected is it enough to say well we won't consider that because maybe somebody else could bring that case and then there is no one else. >> we think that is the proper way to proceed. >> it's not a choice between someone else bringing the case and the law staying in place. in what we're really talking about as justice sotomayor started the discussion, is who is the proper party to take out what isn't infected by the court's holding. with all of these provisions where there may be no standing, one institution clearly does have standing. and that's congress. and if congress doesn't want the provisions that are not infected

to stand, congress can take care of it. it's a question of which side should the court say we're going toorck should the court leave it to congress. >> we think the court should leave it to congress for two reasons. one is the point i'm making now about justice or whether the court can properly consider at all and the second only a few provisions are severable from the provision. >> i'd like your answer to justice breyer's question. i think you were interrupted. >> we believe that in that case the tax provision should not be struck down, in the first place the anti-injunction act would bar a direct suit to challenge it. it would be very strange to allow a tax to be struck down on the basis of a severability analysis. severability arises only where it's necessary to consider what relief a party before the court

should get. >> suppose there was a non-severability provision in this act. if one provision were to be held unconstitutional then every single -- someone would have to bring a separate lawsuit challenging every other provision in the act and say well, one fell and the congress said it's all -- it's a package, it cannot be separated. that's your position. >> the fact that is such a cause might make it easy doesn't change the point. article 3 jurisdictional problems apply to easy questions as well as hard questions. >> no article 3 jurisdictional problem and in the hypothetical that this is a remedial exercise of the court's power to explain the consequences of its judgment in this case. >> but this court has said that one has to have standing for every degree of relief that is sought. thdavis, that was

los angeles versus lyons. >> don't you think it's unrealistic to say leave it to congress, as though you're sending it back to congress for congress to consider it ould wer should we not have provision. that's not what it's going to be. it's going to be these provisions are in effect even though you -- a lot of you never wanted them to be in effect and you only voted for them because you wanted to get the heart of the act which has now been cut out. nonetheless these provisions are the law and you have to get the votes to overturn them. that's an enormously different question from whether you get the votes initially. to put them into the law. there is no way that this court's decision is not to distort the congressional process whrks we strike it all down or leave some of it in place, the congressional process

will never be the same. one way or another, congress is going to have to reconsider this, and why isn't it better to have tem reconsider it -- what should i say, in toto rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance. >>atter of judicial restraint, limits on equitable remedial power limit this court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief -- >> judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act.

i suggest to you it might be quite the opposite. we would be exercising the judicial power if one act -- one provision was stricken and the other remained, to impose a risk on insurance companies that congress had never reason of this court, we would have a new regime that the congress did not provide for, did not consider, that it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike the whole. >> i think no. >> don't accept the premise. >> i think not, justice kennedy. then i'll move on. but this is exactly the situation in prince. the court identified the severability questions that were briefed before the court, as important ones but said that they affect people, rights and obligations of people who were not before the court. >> mr. kneeler, move away from did issue whether it's a

standing question or not. make the assumption that this is the an issue of the court's exercise of discretion. the last two questions have to do with what's wise for the court to do. not whether it has power to do it. so let's move beyond the power issue which your answers have centered on, and give me sort of policy that i know -- that's a bugaboo word sometimes, but what should guide the court's discretion? >> we think that matters of severability blend into -- blend into discretion and in turn blend into the merits of the severability question. as to that to answer a question that several justices have asked, we think that seve severability is a matter of statutory intertation that should be resolved by looking at the structure and the text of the act and the court may look

at legislative history to figure out what the text and structure mean with respect to severability. >> what happened to the eighth amendment. you really want us to go through these 2,700 pages and do you really expect a court to do that? or do you expect us to give this function to our law clerks? is this not totally unrealistic? that we're going to go through this enormous bill, item by item, and decide each one. >> well. >> you don't have to -- said was essential. >> that is correct and i'd also like -- i want to finish the thought i had about this being a matter of statutory interpretation. the court's task we submit is not to look at the legislative process to see whether the bill would have been -- would have passed or not based on the political situation at the time which would basically convert the court into a function such

as a whip count. that's not the court -- >> that would abrevolution in our severability law. we have never suggested that we're going to say look, this legislation was a brokered compromise and we're going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out if they had made a difference. instead we look at the text that's given us forwe look only. should be easy for justice scalia's clerks. >> i think -- >> i don't care whether it's easy for my it' easy for me. >> i think that's exactly right. s statutory interpretation. >> what's exactly right. it's a question of statutory interptation, that means you have to go through every line of the statute. i haven't heard your answer to

justice scalia's question. >> i think in this case there is an easy answer. that is justice kagan pointed out that the act itself creates a sharp dividing line between the minimum coverage provision, the package of reforms, the minimum coverage provision along with the guaranteed issue and community rating that is one package that congress deemed essential. >> how do you know that? where is this line? i looked through the whole act. i didn't 0 owe well -- where is the sharp line? >> it is in congress's that the minimum coverage provision, without it congress said in finding i, without that provision people would wait to get insurance and cause all sel- >> that makes your case that the one provision should fall if he. doesn't tell us anything about all of the other provisions. >> well, i think it does because congress said it was essential to those provisions.

but it conspicuously did not say that it was essential to other provisions. >> let me ask you about the argument that's made in the economist amicus brief. they say the insurance reforms impose 10 year costs of $700 billion on the insurance industry and these are supposed to be off set by about $350 billion in new revenue from the individual mandate and $350 billion from the medicaid expansion. if the $350 billion, maybe you'll disagree with the numbers that they are fundamentally wrong. if the $350 million from the individual mandate were to be lost, what would happen to the insurance industry? which would now be in the hole for $350 billion over 10 years. >> first of all for the court to go beyond text and legislative history to try to figure out how the finances of the bill operated it's like being budget

committee. but we think the economists had added up the figures wrong if there's medicaid expansion the insurance companies are involved in that, they are going to be reimbursed. >> what if there isn't medicaid expansion. we talked about the individual mandate. does the government have a position on what should happen if the medicaid exspan slun is struck down? >> we don't think that would have any effect. that could be addressed in the next argument. we don't think that would have any effect on the rest of the -- >> so the government's position is that if medicaid expansion is struck down the rest of the ookt can operate. >> yes. in the past congress has expanded medicaid coverage without there being -- it's done it many times without there being a minimum coverage provision. >> i don't understand where you are with the answer to justice alito's question. assume that there is a substantial probability that the 350 billion plus 350 billion

equals 7 s going to be cut in half if the individual mandate is stricken. assume there is a significant possibility of that. is it within the proper exercise of this court's function to impose that kind of risk? can we say that the congress would have intended that there be that kind of risk? >> we don't think it's in the court's place to look at the budgetary implications and -- >> isn't that the point then why we should just assume that it is not severable. if we lack the competence to even assess whether there is a risk, then isn't this an awesome exercise of judicial power. to say we're doing something and we're not telling you what the consequences might be. >> no, i don't think so. when you're talking about monetary consequences you're looking through the act, you're looking behind the act rather

than -- the court's function is to look at the text and structure of the act and what the substantive provisions of the act themselves mean. if i could go past -- >> can i -- can you give us a prior case that resembles this one in which we are asked to strike down what the other side says is the heart of the act, and yet leave in as you request, leave in effect the rest of it. have we ever -- most of our severability cases involve one little aspect of the act. the question is whether the rest. when have we ever really struck down what was the main purpose of the act and left the rest in effect. >> booker is the best example of that. in booker the mandatory sentencing provisions were central to the act, but the court said congress would have preferred a statute without the

mandatory provision, in the act, and the court struck that. the rest of the sentencing guidelines remained. >> i think the reason the majority said that was that they didn't think that what was essential to the act was what had been stricken down. that is the ability of the judge to say on his own what the punishment would be. i don't think that's a case where we struck -- where we excised the heart of the statute. you have another one? >> there's no example -- >> there is no example -- >> to our -- that we have found that suggests the contrary. >> really a case of first impression. i don't know another case where we have been confronted with this decision. can you take out the heart of the act and leave everything else. >> like to go to the heart of the act in a moment. but what i would like to say is this is a huge act with many provisions that are completely unrelated to market reforms.

and operate in different ways and we think it would be extraordinary in this extraordinary act to strike that all down because there are many provisions that would be too hard -- >> i think it's not uncommon that congress passes an act, then there are many titles and some of the titles have nothing to do with the other titles. that's a common thing. and you're saying you have never found an instance where they are all struck out when they have nothing to do with each other. my question is, because i hear mr. clement saying something not too different from what you say, he talks about things at the periphery. we can't reject or accept an argument on severability because it's a lot of work for us. that's beside the point. but do you think that it's possible for you and mr. clement, i'm exploring, to get together and agree on -- i mean on -- on a list of things that are in both your opinions

peripheral, then you would focus on those areas where one of you thinks it's peripheral and one of you thinks it's not. at that point it might turn out to be far fewer than we're currently imagining, at which point we can hold an argument or figure out some way or somebody hold an argument and try to get those done. is that a pipe dream or is that -- >> i just don't think that's realistic. the court would be doing it without the parties, millions -- >> i have a conference committee report after maybe. >> it just is not something that a court would ordinarily do. >> back to the argument of the heart. striking down the heart. do we want half a loaf? i think those are the two analogies. >> i would like to discuss it again in terms of the text and structure of the act. we have very important indications from the structure of this act that the wh suppose. the most basic notion

that congress would have intended the whole act to fall if there couldn't be a minimum coverage provision is refuted by the fact that there are many provisions of this act in effec provision. 2.5 million people under 26 have gotten insurance by one of the insurance requirements.-- >> anticipation of the minimum coverage. that's going to bankrupt the insurance companies if not the states, unless this minimum coverage provision comes into effect. >> no re t going to bankrupt any one. sth to cover those -- to cover those amounts. >> i thought that the 26-year-olds were saying that they were healthy and didn't need insurance yesterday. >> 2.5 million people would be thrown off of the insurance rolls if the court were to say that. congress made many changes to medicare rates that have gone into effect for congress for the

courts to have to unwind millions of medicare reimbursement rates. -- has cov million insurance -- preventive care visits by patients as a result of this about the. >> a >> -- act. >> all of that based that the mandate was constitutional and that certainly doesn't stop us from reaching our own determination. >> what i'm saying, it's a question of legislative intent and we have a very fundamental indication of legislative intent that congress did not mean the whole act to fall, if, without the minimum coverage provision, because we have many provisions that are operating now without that, but there's a further indication about why the line should be drawn where i've suggested which is the package of these particular provisions. all of the other provisions of the act would continue to advance congress' goal, as the tests articulated in booker but

it's been said in reagan and other cases. look to what the others to continue the advance of the purposes of the act. here, public, the broad public health purposes of act unrelated to the minimum coverage provision, but also the other provisions designed to enhance afford -- access to affordable care. the employer responsibility provision. the credit for small businesses, which is already in effect, by the way, and affecting many small businesses. >> many people might not, many of the people in congress might not have voted for though provisions if the central part of this statute was not adopted. i mean, you know, to stay that we're effectuating the intent of congress is just unrealistic. once you cut the guts out of it, who knows. who knows which of the -- were really desired by congress on their own and which ones weren't. >> question for the court is, congress having passed the law by whatever majority there might

be in one house or the other, congress hadn't passed the law what, at that point, is the legislative intent embodied in the long congress actually has? >> that's right, but the problem is straight from the title. we have two comp compliment ary purposes. you can't say it's consistent with congress' intent because congress had a balanced intent. you can't look at another provision and say this promotes patient protection without asking if it's affordable. seems to me if you ask what is going to promote congress' purpose, that's an inquiry you can't carry out. >> no. with respect, i disagree, because i think it's evident that congress' purpose was to expand access to affordable care. it did it in discreet ways. it did it by the penalty on employers that don't offer suitable care. it did it by offering tax credits to small employers.

it did it by offering tax credits to purchasers. all of those are for a variety of waifs to continue to further congress' goal and most of all, medicaid which sun related to the private insurance market altogether and in adopting those other provisions governing employers and whatnot, congress built on its prior experience of using the tax code, which -- for a long period of time, congress subsidi subsidized. >> i don't understand about the employers. you're saying congress mandated employers to buy something that congress itself has not contemplated? i don't understand that. >> no. employer coverage. 150 million people in this country already get their insurance through -- through their employers. what congress did in seeking to augment that was to add a provision requiring employers to purchase insurance -- >> based on the assumption that the cost of those policies could be lowered by certain provisions

which are by hypothesis, not sure by hypothesis or in doubt. >> no. i think it's -- any cost assumptions -- there's no indication that congress made any cost assumptions, but there's no reason to think that the individual -- that individual market, which is where the minimum coverage provision is directed would affect that. i would like to say, i pointed out the other things would advance congress' goal. the point here is that the package of three things would be contrary, would run contrary to congress' goal if you took out minimum coverage provision and here's why, and this is reflected in the findings. if you take out minimum coverage but leave in the guaranteed issue in community rating you will make matters worse. rates will go up and people will be -- there will you fewer people covered in the individual market. >> if that is true, what is the difference between guaranteed issue and community rating

provisions on the one hand and other provisions that increase cost substantially for insurance companies? for example, the tax on high-cost health plans, which the economists in the brief said will cost $217 billion over ten years? >> those are -- what congress -- congress did not think of those things as balancing insurance companies. insurance companies are participants in the market for medicaid and other things. >> you're saying we have -- we have the expertise to make the inquiry you want us to make. aim to guaranteed issue. but not the expertise that justice alito's question suggests we much make? i don't understand your position. >> because i think this court's function is to look at the text in structure and legislative history of the law that congress enacted, not the financial, not a financial balance sheet which

doesn't appear anywhere in the law, and just -- >> you're relying on congress' quite explicitly tying these three things. >> we do. that's -- and it's not just the text of the act but the background of the act, with experience in the states, the testimony of the national association of insurance commissioners. that's the problem congress was addressing. there was a shifting of present actuarial risks in that market that congress wanted to correct, and if you took the minimum coverage provision out, and left the other two provisions in, there would be laid on top of the existing shifting of present actuarial risks and additional one, because the uninsured would know that they would have guaranteed access to insurance whenever they became sick. it would make the adverse selection in that market even worse, and so in congress, trying to come up with a market-based solution to controlled rates in that market

has adopted something that would -- that would work to control costs by guaranteed issue and community rating, but if you take out the minimum coverage, that won't work. that was congress' assumption, again, shown by the text and legislative history of this provision, and that's why we think those things rise or fall on the package, because they put against what congress was trying to do. all of the other provisions would actually increase access to, of affordable care, and would have advantageous affects on price. again, congress was invoking its traditional use of tax code, long subsidized insurance through employers, used that to impose a tax penalty on employers, to give tax credits. this is traditional stuff that congress has done, and the other thing congress has done, with those pre-existing laws, had their own protections for guaranteed issue and community rating effectively within a large employer plans.

they can't discriminate among people. they can't charge different rates. what congress was doing, was doing that in the other market if it can't, that's all that should be struck from the act. >> thank you, mr. kneedler. >> in farr. >> in chief justice and may it please the court, at the outset i'd like to say i think that the government's position in this case that the community rating and guaranteed issue provision, though it be struck down is an example of the best driving out the good. even without the minimum coverage provision, those two, guaranteed issue, community rating, will still open insurance markets to millions of people that were excluded under the prior system and for millions of people will lower prices which were raised high

under the old system, because of their poor health. so even though the system is not going to work precisely as congress wants it would certainly serve central goals that congress had of expanding coverage for people who are unable to get coverage or unable to get it at affordable prices. so when -- >> how many of the points mr. kneedler made is that the price won't be affordable. because the -- he spoke of the adverse election problem. that so fewer people in the insurance company they're going to have to raise the premiums. so it's nice that congress made it possible for more people to be covered bus the reality is they won't because they won't be able to afford the premium. >> well, justice ginsburg, let me say two things about that. first of all when we talk about