there's no real choice, and congress does not in effect allow for an opt-out. we just know that. >> well, i guess -- >> and it's substantial. >> i would go back, justice kennedy, go back to the fact that 60% of the medicaid spending is now optional. it's a result of choices that states have made that has expanded -- >> even though they're now frozen in per our earlier discussion to a large extent. >> well -- no, to a much more modest ex pent was my point. for example, optional services where a huge amount of money is spend, more than $100 billion annually, the largest component of that is nursing home services. that remains optional. right now once the maintenance provision remains in place, states have the flexibility to reduce those numbers. states have considerable flexibility now and going forward with respect to the way

that money is spent, and i do think in terms of evaluating whether this expansion should be considered coercive, it's got to be evaluated against the backdrop of the fact that the states are generally taking advantage of the students of this statute to greatly expand the amount of money that the federal government spends and the amount of money they spend to try to make the lives of their citizens better. >> they have to do so by hiring very substantial number of employees. there will be state employees, substantial state administrative expenses that are not reimbursed. >> but i would take issue with that, justice kennedy. part of the affordable care act is that it provides for new streamlined processes to get people into the system at faster and cheaper rate. there are going to be costs to set that up, but under the statute the federal government is going to pay 90% of those costs. the shoerosts, and

then all of the projection that is we have seen suggests that the medium to long-term costs once these changes are going to be in place are going to be dramatically lower. >> obviously the federal government isn't bound to na. what if after the 90% they say, well, now from now on we're going to pay 70%. what happens then? where does that extra money come from? >> well, i think then the states would have a choice at that point whether they were going to stay in the program or not. but that isn't what we have here. >> there's no -- they can just bail out whenever the government reduces the amount of the percentage that it's willing to pay, the states can say -- >> i'm not saying it would be an easy choice, mr. chief justice. >> they'd have to bail out of medicaid. >> that would be -- right, this would be the option. they can leave medicaid if they decide that isn't working for them. i'm not saying this is an easy choice. i'm also not saying it would happen because the secretary does have this discretion. >> the secretary has the

discretion. we're talking about something else. we're talking about fiscal realities and whether or not the federal government is going to say, we need to lower our contribution to medicaid and leave it up to the states because we want people to be mad at the states when they have to have all these budget cuts to keep it up and not -- >> that would be true, mr. chief justice, whether this medicaid expansion occurred or not. >> i know, but you have been emphasizing that the federal government is going to pay 90% of this, 90% of this, and it's not something you can take to the bank because the next day or the next fiscal year they can decide we are going to pay a lot less and you states are still on the hook. you say it's not an easy choice. we can ask whether it's coercion, you're not going to be able to bail out of medicaid. you just have to pay more because we're going to pay less. >> like i said, i agree that it could be a difficult choice in some circumstances, but that is not to say it's coercion as a legal matter or even as a practical matter, and i think it would depend on what the

circumstances were, and i think trying to think about how a court would ever answer the question of whether or not it was coercive, it was too difficult as a practical matter -- >> general, i'm trying to go back to that because justice kennedy asked you whether there's -- i think he said it's coercion if not one can be politically accountable. i'm not sure how that could be practically politically accountable because almost every gift, if the terms are attractive, it would be an unattractive political alternative to turn it down. dole itself was one of those cases. i think every state raised the drinking age to 21, correct? >> yes, justice sotomayor, and this argument was raised in dole and the court rejected it -- >> i guess my point is that political accountability has two components. what can i do if i like

something, and what can i do if i don't like something. and if people really like something like medicaid, they're not going to let you drop it, correct? >> well, the citizens of the state -- >> exactly. that's the whole point. that's their choice, right? >> -- and i think that's -- to get back to the point, that's why i think it was wrong to think about this as coercion because it's a program that works effectively of the states and state governments think that, and that is why it has expanded the way it's expanded, because it's providing an essential service for millions of needy citizens in these states, providing access to health care that they would not otherwise have. >> you mentioned the dole case, what was the threat in that case? raise your drinking age to 21 or what? tage>> of your highway funds. >> do you remember the percenta percentage? >> 7%. >> a small amount. that's apple and oranges when you ta a your med kads funds or lose -- i thought

it was 5%, but or lose 7% of your highway funds. >> i don't think this makes it coercion as a legal matter. i said i think this is a situation in which -- if the states -- i'm not saying it would be an easy choice, but the states made the choice -- >> they made the choice with the stimulus bill, didn't they? come governors rejected the stimulus bill. >> that's correct. >> and some of their congressional or legislative processes overturned that. >> that's right. >> and others they supported it. the percentages were smaller, but it's always the preference of the voters as to what they want, isn't it? >> what was the threat in the stimulus bill? what would the state lose? >> that answer i don't know. >> would anything be taken away or would it just lose the opportunity to get the money? >> i don't know the answer to that. if i may just say in conclusion

that -- i'd like to take half a step back here. this provision, the medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as that solve problems, problems in the economic marketplace that have resulted in millions of people not having health care because . there is an important connection, a profound connection, between that probles importth of that. that in this population of medicaid eligible people who will receive health care that they cannot now afford under this medicaid expansion, there will be millions of people with

chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty, and the same thing will be true for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone and i could multiple example after example after example. in a very fundamental way this medicaid expansion as well as the provisions we've discussed yesterday secure the blessings of liberty, and i think that that is important as the court is considering these issues, that that be kept in mind. the congress struggled with the issue of how to deal with this profound problem of 40 million

people without health care for many years, and it made a judgment, and its judgment is one that is, i think, in conformity with what lots of experts thought was the best complex of options to handle this problem. maybe they were right, maybe they weren't, but this is something about which the people of the united states can deliberate and then vote, and if they think it needs to be changed, they can change it. and i would suggest to the court with profound respect for the court's obligation to ensure that the federal government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. that this was a judgment of policy that the democratically accountable branchs of this government made by their best lights and i would urge this court to respect that judgment and ask that the affordable care act in its entirety be upheld. thank you.

>> thank you, general. mr. clemente, you have five minutes. >> thank you, mr. chief justice. may it please the court, just a few points in rebuttal. we've talked a lot about the sort of hallmark of coercion, your money or your gun. i would respectfully suggest it is equally coercive and certainly not uncoercive your money or your life and i have discretion as to whether or not i will shoot the gun. i don't think that eliminates the coercion. i also don't think this is a discretion that the secretary would ever be able to exercise and the reason is we disagree on the details but the solicitor general and i agree that over the years congress has had different approaches to expanding medicare. sometimes, as in 1972, it makes the expansion voluntary. that's also, by the way, what happened with the stimulus funds were were voluntary funds. you didn't lose all your medicaid funds which is why 17 states could say no. sometimes they take the voluntary approach, sometimes they take the mandatory approach.reta exercised the

discretion to say it really isn't reasonable for you to have to gup for the visually impaired to cover these newly eligible people, we will make that discretionary, that would be essentially converting a 19le 4 amendment to a 1972 amendment approach and i just don't think that's the kind of discretion that the secretary has, with all due respect. now, moving on to the next point, justice alito, your hypothetical aptly captures the effect on this based on the fact these tax collars are being taken from the state's tax base. it's not like stewart machine where the government says if you don't take the option we're giving you, we'll have a federal substitute to go in. here if you don't take this offer we're giving you, your tax dollars will fund the other 49 states and you'll get nothing. of course, this situation is much more coercive even than your hypothetical because it is tied directly to the mandate. it's also died to the participation in the

pre-existing program. so it's as if there was yet another program for post-secondary education, they gave them exactly your option, and then they also said, by the way, you not only not get these funds but you lose the post secondary funds as well. it's hard to understand tying the pre-existing porption in the program as coercive. the sol lis ter general makes a lot -- there will be a lot less opportunity for the states to xerds those options because one of the things that the expansion does precisely because it's designed to convert medicaid into a program that satisfies the requirement of the minimum essentially coverage of the mandate, things that used to be voluntary will no longer be voluntary. the perfect example is prescription coverage. it's a big part of the benefits that some states, but not all, provide voluntarily now. it will no longer be voluntary after the expansion because the federal government has deemed

prescription drugs to be part of the minimal essential health coverage that everybody in this country must have under the man date. so that option that the state has is being removed by the expansion itself. the chief -- >> may i ask one question about your bottom line in this case. it sounds to me like everything you said would be to the effect of, if congress continued to do things on a voluntary basis, so adding these new eligibles and saying you can have it or n pro it existed before, you can opt into this, but you're not asking the court as relief to say, well, that's how we cure the constitutional infirmity. we say this has to be on a voluntary basis. instead, you are arguing that this whole medicaid, the addition, the whole expansion has to be nullified and, moreover, the entire health care

act. instead of having the easy repair, you say that if we accept your position, everything falls. >> well, justice ginsburg, if we can start with the common ground that there's need for repair because there is a coercion doctrine and this is coercion, then we're into the question of remedy. we take the position you describe in the remedy, but we would be certainly happy if we got something here and we got a recognition that the coercion doctrine exists. this is coercive and we get the remedy that you suggest in the alternative. let me just finish by saying i simple appreciate what the solicitor general says, that when you support a policy you think that the policy spreads the blessings of liberty. but i would respectfully suggest it's a very funny conception of liberty that forces somebody to purchase an insurance policy and it's a very strange conception of federalism that says that we can simply give the states an offer that they can't refuse and through the spending

power, which is premised on the notion that congress can do more because its voluntary, we can force the states to do whatever they tell them to. that is a direct threat to our federalism. thank you. >> thank you, mr. clemente, and thank you, general verrilli. the case is submitted. we will continue our -- >> and that wraps up the last of three days of oral argumee justices have heard. if you missed any of this it's now available online at cspan.org and we'll show it again shortly here on c-span3. also in our prime time schedules. we've got a facebook poll up s. we'd like to know which justice you think is having the biggest influence on the oral arguments. log on to vote and leave your thoughts. that's at facebook.com/c-span.

that's cspan with no dash. we've been following the debate from the beginning. you will find archival video of hearings, speeches, and rallies to other web pages. that follow c-span's local content vehicles throughout the weekend american history tv explore the history little rock, arkansas. saturday starting at noon eastern on book tv on c-span2. author grif stockily on the little known riots and killing of at least 20 african-american sharecroppers. >> you had calls going all up and down the mississippi delta, and saying that blacks were now in revolt, and the next morning between 600 and 1,000 men, white member, pour into phillips

county to begin shooting down blacks. >> and on american history tvon c-span3, sunday at former student bruce lindsey on integration and north little rock high school. >> it's as happen, but we don' know what's going to happen. wereale what's going to happen when we get up those steps. but they seem toecis wh us now. the momentum is behind us, and they are pushing us up the steps. >> these stories and others from c-span's local content vehicles in little rock. this weekend on c-span2 and 3. >> this is c-span3 with politics and public affairs programmingv weekend 48 hours of people andt story on american history tv. get our schedules and see past programs at your websites and you can join in the conversation on social media sites. next, today's supreme court

oral argument in the case of the health care law. this is the third of three days of oral argument. today justices heard two issues, the first which we'll show you next, focused on whether the health care law would fall if the individual mandate provision was ruled unconstitutional. later the court heard about the constitutionality of expanding medicaid. together today's arguments were on just under three hours. >> we will continue argument this morning in case number 11393, national federation of independent business versus sebelius, and case 11400, versus the department of hhs. mr. clemente. >> mr. chief justice and may it please the court, if the individual mandate is unconstitutional then the rest of the act condition stand. as congress found and the federal government concedes, the community rating in guaranteed issue provisions of the act condition 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 instatendintended will counteract congress' basic goal of providing patient protection but also affordable care. 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 skyrocket. we can debate the order of magnitude of that, but we can't debate that the direction will be upward. we also can't -- >> counsel, 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 in one instance we might not say it is unconstitutional, massachusetts passed the mandatory coverage ro adjusted other why shouldn't we let congress do that if, in fact, the economists prove right that prices will spiral? it in the hands of the people who should be fixing this, not us? >> a couple of questions. a couple of responses. first of all i think it is very relevant that congress had before it as examples some of the states that had tried to impose guaranteed issue and community rating and did not propose an individual mandate. congress rejected that model. you are right in saying it is not impossible without an

individual mandate but a model that congress looked at and finding, finding 43-aand then specifically found thatf, having the mandate is essential to the operation of guaranteed issue and rating. >> that's all it said. i'm looking at it. the exchanges, the state exchanges or information gathering facilities that tell insureha the various policies actually mean. that has proven to be a cost saver. why should we be striking down a cost saver? if your argument is that congress was concerned about cost rising which we assume they wouldn't have passed that information. >> i would think you have to

take the bitter with the sweet. if we are going to look at congress's goal of providing patient protection but also affordable care i don't think it works to just take the things that save money and cut out the things that are going to make premiums more expensive. >> the bottom line is why don't we let congress fix it? >> let me answer the bottom line question which is no matter what you do in this case, at some point there will be something for congress to do. the question is really what task you want to give congress. do you want to give congress the task of fixing the statute after something has been taken out or do you want to give congress the task of fixing health care. >> we're not -- if we strike down one provision we are not taking that power away from congress. congress could look at it without the mandatory coverage provision and say it doesn't work or choose to fix what it

has. we are not declaring one portion to force congress into any path. >> of course, that's right. no matter what you do here congress will have the options available. if you strike down only the individual mandate congress can say the next day that's the last thing we wanted to do so we are going to strike down the rest of the statute immediately. whatever you do congress is going to have options. >> there is such a thing as legislati legislative inursha. >> the question is what is the best result in light of that reality. >> suggesting that we should take on more power to the court. congress would choose to take one half rather than another. that's sort of taking on to the court more power than one i think would want. >> i agree. we are asking this court to take on straight on the idea of the basic remedial inquiry into

severability which looks into the insulin tent. >> why do we look to the -- are you sure we look to the intent? i thought sometimes congress says that these provisions will -- all the provisions of th a severable. do we ignore that when the act really won't work? when the remaining provisions won't work. how can you square that reality with the proposition that what we are looking for here is what would this congress have wanted. >> two responses. we can look at this court's cases on severability and they formulate the tests differently. everyone of them talks about congressional intent. >> that's true, but is it right? >> it is right. here is how i would answer your question. when congress includes a severability clause it is addressing the issue in the abstract.

it doesn't say no matter which provisions you strike down we want what a left. >> the consequence of your proposition, would congress have enacted it without this provision? that would mean if we struck down nothing in this legislation but the corn husker kickback, we find that to violate the constitutional proscription , when we struck that down it is clear congress would not have passed it without that. it was means to get the necessary vote in the senate. and you are telling us that the whole statute would fall because the corn husker kickback is bad. that can't be right. >> i think it can be which is to say the basic proposition.

i would suggest the one common ground among every member of this kourtd as i understand it is you start with the text. >> let's start with the text and you suggest and i think this is right that there is a textual basis for saying that the guarantee issue and the community rating provisions are tied to the mandate. you pointed to where that was in the findings. is there a textual basis for anything else because i have been unable to find one. it seems to me that if you look at the text, the sharp dividing line is between guarantee issue community ratings on the one hand and everything else on the other. >> i would be delighted to take you through my view of the text. the first place i ask you to look is finding j on 43-a. that's a finding that the individual mandate is essential to the operation of the exchanges. there are other links between

guarantee issue and rating and exchanges. there the way the exchanges are supposed to work and the text makes this clear is they are supposed to provide a market where people can compare community rated insurance. >> although the exchanges function perfectly well in utah where there are no mandates. they function differently but function. the question is always, does congress want half a loaf? is half a loaf better than no loaf? on something like exchanges it seems half a loaf is better than no loaf. the exchanges will do something and won't do everything that congress envisioned. >> i think there are situations where half a loaf is actually worse and i want to address that. before i do that if i can stick with the exchanges i think the question that this court is supposed to ask is not just whether they can limp along and operate independently but whether they operate in the manner that congress intended.

that is where the exchanges fold down. the vision of the exchanges is if you got out of this current situation where health insurance is individualized priced and provide community rating then it is easy for people to see this is a silver policy and a bronze policy and a gold policy and pick which insurer provides what i think is the best service based on those comparable provisions. >> you say the question is the manner in which it would have operated. i guess the best example would be booker where we decided not to sever provisions but not withstanding 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. >> i think booker supports our

point, as well. there are two remedial holding of booker. the first partwhich i think supports our point is where the majority rejects the approach of the dissent. this court said if you do that then all the sentencing is basically going to be done by a combination of the juries and the prosecutors and the judges are going to be cut out. the court said that is not the manner in which the court thought this should operate. later they talk about which provisions to cut out. i think booker is consistent with this way of looking at it and consistentwit the opinion we rely on because there the court reached that opinion after they found that the must hire provision operated functionally independent from the legislative -- >> there are so many things in this