i think see that reauthorizing the alien health care improvement act, why may congress redo those? it's a question of whether we say everything you did i and st to say there are many things in frankly, with the affordable health care and there are some that we think it is better to let congress decide whether it wants them in or out. so why should we say it's a choice between a routine operation which is what you are requesting or a sal vagjob. and the more conservative approach would be salvage rather than throwing out everything. >> two kinds of responses to that. one, i think there are some provisions that i would idey pe

this statute and the case for severing those is perhaps the strongest. i think it is fundamentally different because if we were in here arguing that some provision on the periphery. the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are at the heart of this act. if you look at how they are textually interconnected and connected to the revenue offsets and connected to medicaid, what you end up with at the end of that process is a hollow shell. at that point i think there is a strong argument. you can't possibly think that congress would have passed that hollow shell. >> it would have passed parts of the hollow shell.

a lot of this is reauthorization of proappropriatuations that ha been reauthorized. can you suggest the black lung benefits act. those have nothing to do with any of the things we are talking about. >> mr. chief justice they tried to make them jermaine. i'm not here to tell you -- there are provisions looking for the next to make it to the finish line. the question is, when everything else from the center of the act is interconnected and has to go, if you follow me that far, then the question is would you keep the hollowed out shell. >> i'm not sure what is the test. i need to know what standard you are asking me to apply. is it whether as a rational

matter the 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 two. completely unrelated. one is airline rates and the other is milk regulation and they decide them together. the procedural rules, these have to be voted on, they are both passed. one is declared unconstitutional. 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. so we ask whether or not an objective rational matter one could function. i still don't know what the test is that we are supposed to apply. could you give me some help. >> the reality is i think this

court's opinion has applied both strains of the analysis. >> what test do you suggest we follow? >> i'm a big believer in objective tests. i am perfectly happy for you to apply a more textually based objective approach. i think if you look at the legislative history of this it would fortify the conclusion. i'm happy to focus support on the objective textual inquiry. >> and that objective test 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. >> everyone of your cases if you have a formulation for severability, if you interpret

it becomes -- as blackman suggests in foot note seven of course it doesn't operate exactly in the manner because it doesn't have all the pieces but you still make an inquiry. when congress links two provisions together. >> what is wrong with the prezumption that our law says that says we presume that congress would want to settle. wouldn't that be the simplest most objective test going past what we have done. get rid of legislative intent all together which some of our colleagues have promoted and just say unless congress tells us directly it is not severable we should not sever. we should let them fix their problems. you still haven't answered me why in a democracy structured like ours when each branch does

different things why we should involve the court. >> let me try to answer the specific question. the specific question is -- you could adopt a new rule -- >> it's not a new rule. we presume. we have gutted the presumption in some cases. >> get to the point you want to get to you have to wracht up a couple of ticks on the scale. >> what's wrong with that? >> one thing that is wrong with that is that is inconsistent with virtually every statement of your severability opinions. >> it is not inconsistent with our practice. you have to go back decades and decades and i'm not sure even then you could find a piece of legislation that we refused to

sever. >> there is a great example which improves and a segue is a case that involves a federal statute. is randal against sorrel where this court struck down various provisions of the vermont finance law and other provisions were not touched by the theory. this court at the end of the opinion said there is no way to think that the vermont legislator wanted these hand full of provisions on the contribution side so we'll strike down the whole thing. i think the reason it makes sense in a democracy with separation of power to sever the whole thing because sometimes a half a loaf is worse. a great example is buckley. this court looked at a statute that tried to strike down limits on contributions and closely related expenditures. this court left the con tribution ban in place and for

four decades congress has tried to fix what is left of the statute largely unsuccessfully whereas i think it would have worked better from a democratic and separation of power standpoint if the court would have said you can't limit expenditures under the constitution. the contribution is joined at the hip. give congress a chance to fix the problem. >> can i ask you one question which is a practical question? i take as a given your answer to justice kennedy. you said let's look at it objectively and say that congress had intended this. this is the mandate. this is tied with one and two. the mandate preexisting condition. here is the rest of it. when i look through the rest of it i have all kinds of stuff in there. i haven't read every word of that, i promise. there is bio similarity, breast

feeding, promoting nurses and doctors to serve and class act, etc. what do you suggest we do? should we appoint a special master with an instruction? should we go back to the district court? you haven't argued most of these. as i hear you now you are pretty close to the sg. you would like it all struck down. if we are supposed to apply the objective test i don't know if you differ very much. what do you propose that we do other than spend a year reading all of this and have you argue? >> what i would propose is the following. follow the argument this far and then ask whether you have a hollowed out shell. >> i would say the breast feeding act, getting doctors to serve under served areas and drug regulation, the class act, those have nothing to do with the stuff that we have been talking about yesterday and the day before.

so they have nothing to do with it and they can stand on their own. the end yn thing about helping the under served native americans has nothing to do with it. black lung disease has nothing to do with it. you know what you have there? a total off the cuff impression. that's why i'm asking, what should i do? >> individual mandate. the individual mandate guaranteed issue and community rating together are the heart of the act. they are what make the exchanges work. the e are critical to the tax credits because the amount is key to the amount of the policy on the exchange. the exchanges are key to the employer mandate. it becomes imposed on the employer. it doesn't stop there. look at the medicare provision for dish hospitals. these are hospitals that serve a

disproportionate share. this isn't in title one. it is the other part in your hand. it doesn't work with the mandate community rating. >> what would your fall back position be if we don't accept the proposition that if the mandate is declared unconstitutional every single provision has to fall. other proposed dispositions have been proposed. there is the recommended disposition to strike down the guarantee issue and community rating provisions. one says strike down all of title one and title two. what would you suggest? >> i think what i would suggest and i don't want to be unresponsive is that you follow the argument through and figure out what in the core of the act falls and i guess my fallback is what is left is a hollowed out shell you could leave that

standing. if you want a practical answer you could use off the cuff as a starting point and say title one and a handful of related provisions are very -- the bigger volume in the other hand. you could strike one and leave the other. i'm sorry. >> finish. >> at a certain point i think the better answer might be to say we have struck the heart of this act. let's give congress a clean slate. if it is so easy to have that other big volume get reenacted they can do it in a couple of days and it won't be a big deal. if it is not -- you can laugh at me if you want. i would rather suspect that it won't be easy. i would rather suspect that if you dug into that there would be something that was quite controversial in there and couldn't be passed quickly. >> but the reality of the passage, this was a piece of legislation which there had to be a concerted effort to gather

enough votes so it can be passed. i suggest that with these provisions that was the price of the vote. put in the end yn health care provision and i will vote for the other 127 pages. put in the black lung provision and i will go along with it. that's why many of those provisions i think were put in, not because they were unobjectionable. what congress would have done is they wouldn't have been able to put together the votes to get it through. >> maybe that is right mr. chief justice and i don't want to spend all of my time fighting over the periphery because i think there are provisions that once you get rid of the core provisions of the act you let the periphery fall with it. as to the core provisions of the act which are the mandate community issue but include the exchanges, as to all of that i

think you want to strike it all down to avoid -- if i can observe the remainder of my time. >> thank you, mr. clement. >> thank you mr. chief justice and may it please the court, there should be no occasion for the court in this case to consider issues of severability because as we argue the minimum coverage provision is fully consistent with article 1 of the constitution. if the court were to conclude otherwise it would reject the 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 businesses who are not before the court. >> how does your proposal actually work? your idea is that they can take

care of it themselves later. do you contemplate them bringing litigation and the insurers would be the obvious ones? without the mandate the whole thing falls apart and wree going to bear greater costs. that is another line of litigation? >> i think the continuing validity of any particular provision would arise in litigation that would otherwise arise under that provision by parties -- >> what cause of action is it? i have never heard of a severability cause of action. >> the point isn't that there has to be an affirmative cause of action to decide this. to use the medicare reimbursement issues it changes the rates. the place where someone adjudicates the validity of medicare reimbursement rates is through the review procedure for

that -- >> there are some provisions which nobody would have standing to challenge if the provision is simply an ex penditure of federal money it doesn't hurt anybody except the taxpayer. that continues even though it is so closely aaligned to what has been struck down that it ought to go. that has to continue because there is nobody in the world that can challenge it. can that possibly be the law? >> i think that proves our point. this court has repeatedly said that because there is no one they have to challenge and particularly like tax credits and taxes which are challenged only after going through the antiinjunction act doesn't mean someone must. >> those are provisions that have been legitimately enacted.

the whole issue here is whether these -- that they also have not been legitimately 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 the court struck down provisions of the act and went on to say it had no business assessing the severability of other provisions. >> i think he is thinking of imagine a tax which says this tax amount y goes to purpose x which will pay for half of purpose x. the other half will go 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 sit there collecting half the money forever because nobody can challenge it? if it were connected is it enough to say we won't consider that because maybe somebody else could bring that case? >> we think that is the proper way to proceed. >> it is not a choice between someone else bringing the case and the law staying in place. what we are really talking about as justice started this 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 they made the no standing,

one institution clearly does have standing and that is 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 to wreck the whole thing or should the court leave it to congress? >> we think the court should leave it to congress for two reasons. one is the reason i'm making now about whether the court can properly consider it at all and we think only a few provisions are inseverable. >> before you go i would like your answer to justice breyer's question. >> we believe the tax provision should not be struck down. in the first place the antiinjunction act would bar it

change for a tax to be struck down on the basis of severability analysis. it arises where it is necessary to consider what relief a party before the court should get. >> because there was a nonseverability 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 single other provision in the act and say one fell and the congress said it's a package that can't be separated? that's your position? >> the fact that that is such a clause might make it easy doesn't change the point. article 3 jurisdictional. >> there is no problem in the hypothetical. this is remedial exercise of the court's power to explain the consequences of the judgment in

this case. >> but this court had said that one has to have standing for every degree of relief that is sought that was in davis. that was los angeles versus lions. >> don't you think it is unrealistic to say leave it to congress? as though you are sending it back to congress for congress to consider it dispassionately, on balance should we have this provision or not? that is not what it is going to be. it's going to be these provisions are in effect even though a lot of you never wanted them to be in effect if you only voted for them because you wanted to get the heart of the act which has now been cut out. 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 going to distort the congressional process whether 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. why isn't it better to have them reconsider it -- what should i say? in total rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance? >> we think as a matter of judicial restraint limits of equitable, remedial power limit this court to addressing the provision that has been challenged as unconstitutional and anything else at the plaintiff seeks as relief. >> when you say 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 it might be opposite. we would be exercising the judicial power if one was stricken and the other remained to impose a risk on insurance companies that congress never intended by 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 striking the whole. >> i think not, justice kennedy. and then i'll move on. this is exactly the situation. the court identified the severability that was briefed before the court as important

ones but said they effect rights and obligations of people not before the court. >> move away from the issue of whether it is a standing question or not. make the assumption that this is an issue of the court's exercise of discretion because the last two questions had to do with what is wise for the court to do, not whether it has power to do it. let's move beyond the power issue which your answers have centered on and give me the policy. what should guide the court's discretion? >> we think that matters do blend into -- >> blend into discretion and in turn blend into the merits of

the severability question. to that we think severability is a matter of statutory interpretation that should be resolved by looking at the structure and the text of the act and the court may look at legislative history to see what they mean with respect to severability. >> what happened to the eighth amendment? you really want us to go through these pages? 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 are going to go through this enormous bill item by item and decide each one? >> well -- >> you don't have to. >> that is correct. i would also like -- i just want to finish the thought i had about this being a matter of statutory interpretation. the task is not to look at the

legislative process to see whether the bill 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 would be a revolution in our severability law, wouldn't it? we have never suggested that we are going to say look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street. instead we look at the text that is given us. for some people we look only at the text. it should be easy for the clerks. >> i think -- >> i don't care whether it is easy for my clerks. i care whether it is easy for me. >> i think that is exactly

right. it is statutory interpretation. >> that means you have to go through every line of the statute. i haven't heard your answer to the question yet. >> i think in this case there is an easy answer and that is justice kagen pointed out that the act itself creates a sharp dividing line between 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? where is the sharp line? >> it is in congress's findings that the minimum coverage provision, without it the court said in finding i people would wait to get insurance and cause all the adverse selection -- >> that makes your case that the

one provision should fall if the other does. it doesn't tell us anything about the other provisions. >> i think w essential to those provisions but it did o other provisions. >> may i ask you about the argument made in the economist brief? they said the insurance reforms impose costs on the insurance industry and these costs are supposed to be offset 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, but assuming that they are in the ballpark, 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 ten 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 have added up the figures wrong. if there is medicaid expansion and the insurance companies are involved ichb that they are going to be reimbursed. >> what if there isn't medicaid expansion? does the government have a position on what should happen if the medicaid expansion is struck down? >> we don't think that would have effect that could be addressed in the next argument. we don't think that would have effect. >> so the government's position is if medicaid expansion is shut down the rest can operate? >> in the past congress has expanded medicaid coverage without there being a minimum coverage provision. >> i don't understand where you