mr. clement. mr. farr, you were invited by this court to brief and argue in these cases in support of the decision below on severability. you have ably carried out that responsibility, for which we are grateful. case no. 11-393 is submitted. we will continue argument in case number 11-400 this afternoon. [captions copyright national cable satellite corp. 2012] >> in the fourth and final arguments, they looked at the expansion of the medicaid program by the federal government. this case is on appeal from the 11th circuit. that court ruled that congress overreached and the individual mandate is unconstitutional, but medicaid portion of the statute can stand. this is one hour, 25 minutes. [captioning performed by national captioning institute] >> we will continue argument this afternoon in case 11-400, florida v. department of health and human services. mr. clement. >> mr. chief justice, and may it please the court -- the constitutionality of the act's massive expansion of medicaid depends on the answer

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 do

mr. clement. mr. farr? you were invited by this court to brief and argue in these cases in support of the decision bef low -- below on severability. you have carried that out, for which we are grateful. case number 11393 is submitted. we will continue argument in case number 11400 this afternoon. >>> on your screen, paul >> we will continue argument this afternoon. mr. clement? >> another constitutionally of the act's plaszive expansion of medicaid depends on the answer to two related questions. first, is the expansion coercive and second, does that coercion matter. >> mr. clement, can i ask you, just in matter of clarification. would you be making the same argument instead of the federal government picking up 90% of the cost, the federal government picked up 100% of the cost? >> justice kagan, i would be making the exact same argument. >> the exact same argument. so that really reduces to the selection why is a big gift from the federal government a matter of coercion? in other words, the federal governmen

mr. clemente, he's not going home tonight. >> i was going to say mrs. clemente -- >> i'm talking about my life. i'd say take mine, you know? >> i wouldn't do that either. >> it's enough prif volufrivoli while, but i want to make sure i understand where the meaningfulness of the choice is taken away. is it the amount that's being offered, that it's just so much money of course you can't turn it down or is it the amount that's going to be taken away if you don't take what they're offering? >> it's both, your honor. there really is three strings in this bow. one is the sheer amount of money here makes it very, very difficult to refuse because it's not money that has come from some -- china or from, you know, the export tariffs like in the old day. it's coming from the taxpayers, so that's part of it. the fact they're being asked to give up their continuing participation in a program that they've been participating in for 45 years as a condition to accept the new program, we think that's the second thing -- >> why isn't that a consequence of how willing they

mr. clement. mr. carbon. >> thank you, mr. chief justice. may it please the court. aid like to begin with the solicitor general's main premise which is that they can compel the purchases of health insurance in order to promote commerce in the health market because it will reduce uncompensated care. if you accept that argument, you have to fundamentally alter the text of the constitution and give congress plenary power. it simply doesn't matter whether or not this regulation will promote health care commerce by reducing uncompensated care. all that matters is whether the activity actually being regulated by the act negatively affects commerce or negatively affects commerce legislation so that it's within the commerce power. if you agree with us that this is -- that this exceeds commerce power the law doesn't somehow become redeemed because it has beneficial policy effects in the health care market. in other words, congress does not have the power to promote commerce. congress has the power to regulate commerce, and if the power exceeds permissible regulatory authorit

mr. clement, you have 5 minutes. >> thank you, mr. chief justice and may it please the court -- just a few points in rebuttal. first of all we talked a lot about the sort of hallmark of coercion, your money or your life, with somebody with a gun. i would respectfully suggest that it is equally coercive or certainly not uncoercive if i say your money or your life -- and by the way, 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, which 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, as in 1984, they take

mr. clement. >> mr. chief justice, may it please the court, the affordable care act's provisions will provide millionings of americans to have access to health care that they cannot now afford. it's an effort of spending power that complies with all of the -- and the states do not contend otherwise. the states are asking this court to do something unprecedented, which is to declare this an impermissively coercive enterprise. >> what is it that you thought we meant in those prior decisions when you said that the federal government cannot be coercive. give us a hypothetical. >> i think what the court said and in dole is that it's possible that you might envision a situation in which there is coercion. but i can think of something. one example i can think of that might serve as a limit wouldbe

mr. clement. mr. carvin? >> thank you, mr. chief justice. may i please the court. i'd like to begin with the solicitor general's main premise, which is that they can compel the purchase of health insurance in order to promote commerce and how the market because it will reduce uncompensated care. if you accept that argument, you have to fundamentally alter the text of the constitution and give congress plenary power. it simply doesn't matter whether or not this regulation will provide -- promote health care, reducing uncompensated care. all that matters is whether the activity actually being regulated by the act negatively affects congress or negatively affects commerce regulation, so that its within the commerce power. if you agree with us that this is -- exceeds commerce power, the law doesn't somehow become redeemed because it had been official policy affects in the health-care market. in other words, congress does not have the power to promote commerce. congress has -- congress has the power to regulate commerce. and if the power exceeds their permissible regula

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 t

mr. clement. >> mr. chief justice, and may it please the court, the mandate represents an unprecedented effort by congress to compel individuals to enter commerce in order to better regulate commerce. the commerce clause gives congress the power to regulate existing commerce. it does not give congress the far greater power to compel people to enter commerce, to create commerce essentially in the first place. now, congress, when it passed the statute, did make findings about why it thought it could regulate the commerce here. and it justified the mandate as a regulation of the economic decision to forgo the purchase of health insurance. that is a theory without any limiting principles. >> do you accept your -- the general's position that you have conceded that congress could say if you're going to consume health services, you have to pay by way of insurance? >> that's right, justice sotomayor. we say consistent with 220 years of this court's jurisprudence, if you regulate the point of sale, you regulate c

mr. clement. it just seems -- >> what it means to be the junior justice. >> it just seems very strange to me that there's no question we can have a social security system besides all the people today, i'm being forced to pay for something i don't want, and this would seem to me to try to get care for the ones who need it by having everyone in the pool, but it's also trying to preserve a rule for the private sector, for the private insurers. there's something very odd about that, that the government can take over the whole thing and we all say, oh, yeah, that's fine. but if the government wants to preserve private insurers, can't do that. >> well, i don't think the test of a law's constitutionality is whether it more adheres to the libertarian principles of the kato institute or the status principles of someone else. i think the test of a law constitutionally is not the policy questions. it's whether or not the law is regulating things that negatively affect commerce or don't, and since obviously t

mr. clement, you have five minutes. >> thank you, mr. chief justice, may it please the court, just a few points in rebuttal. first we have talked about the hallmark of coercion, your money or your life of somebody with a gun. i would respectfully suggest that it's coercive if i they 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 the secretary would ever be able to exercise. over the years, congress has had different approaches in expanding medicare. in 1992, it makes the decision voluntary. sometimes they take the voluntary approach, sometime as in 1984, they take the mandatory approach. if the secretary exercised the discretion to say you know what? it really isn't reasonable for you to -- we'll make it voluntary, we'll make that discretionary, that would essentially be converting a 1984 amendment approach to a 1972 amendment approach. and i don't think that's the kind of discretion that the secretary has, with a

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 d

mr. clement and mr. carvin to respond to those arguments. >> ifill: but the chief justice and justice kennedy and justice scalia and the silent justice thomas seemed to be... >> they were much more aggress with the government. but that's almost understandable because the government is appealing a lower court decision that struck down the mandate. the government has in a sense the tougher argument to make. this is an unusual exercise of congress's power and so the government has to lay out the reasons for that power. and also the court was very interested in if this is okay you should the commerce clause, what are the limits? what stops congress from ordering... commanding that consumers or citizens purchase or do other things? >> ifill: it's also an argument in the court today about whether this is the job of the federal government, that it should be the job of the states. is there any record to show that states have been willing to step in this void that the government says exists in the health care ava

mr. clement. >> mr.hief justice, and may it please the court -- the constitutionality of the act's massive expansion of medicaid depends on the answer to two related questions. first, is the expansion coercive? and, second, does that coercion matter? >> mr. clement, can i ask you just a matter of clarification? would you be making the same argument if, instead of the federal government picking up 90% of the cost, the federal government picked up 100% of the cost? >> justice kagan, if everything else in the statute remained the same, i would be making the exact same argument. >> the exact same argument. so that really reduces to the question of why is a big gift from the federal government a matter of coercion? in other words, the federal government is here saying, we are giving you a boatload of money. there are no -- there's no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's healthcare. it doe

mr. clement's more difficult arguments to make. the justices are struggling with finding where that line of coercion is. justice sotomayor, justice kagan, they don't see that know-- they look-- i think justice kagan said, this is a boat load of money and very few strings are attached to it. states still have the option of pulling out, sles slis tergeneral virilli, said sure, it's not an easy decision to opt out of it, but they have the choice. >> ifill: they both ve summations at the end. one made the argument that represented the administration that this health care law was about the blessings of liberty. and paul clement said it's a funny conception of liberty. >> mr. virilli, i think, tried to bring back today from three days of arguments what's really at stake here in terms of congress' authority under the constitution. he said congress struggled with this problem of 43 million uninsured americans and it came up with this solution, which it thought was the pest solution. with medicaid, expansion, he said there will be millions

mr. clement, you have 5 minutes. >> thank you, mr. chief justice and may it please the court -- just a few points in rebuttal. first of all we talked a lot about the sort of hallmark of coercion, your money or your life, with somebody with a gun. i would respectfully suggest that it is equally coercive or certainly not uncoercive if i say your money or your life -- and by the way, 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, which 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, as in 1984, they take

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 the guaranteed issue provisions of the act cannot stand without the individual mandate. congress found that the individual mandate was essential to their operation. not only can guaranteed issues of kiddy ratings not stand, not operate in the manner that congress intended, it would actually counteract congress's basic goal of providing base -- patient protection and affordable care. you can -- if you do not have the individual mandate that forces people into the market, a community rating guarantee issue will cause the cost of premiums to skyrocket. we can debate the order of magnitude of that, but we cannot debate that the direction will be a part. >> that may well be true. the economists are going back and forth on that issue. the figure varies from 10% to 30%. we are not in the habit

mr. clement. mr. kneedler. >> 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 -- the minimum coverage provision is fully consistent with article i of the constitution. but if the court were to conclude otherwise, it should reject petitioners' 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 businesses who are not before the court -- >> how does your proposal actually work? your idea is that, well, they can take care of it themselves later. i mean, do you contemplate them bringing litigation and saying -- i guess the insurers would be the most obvious ones - without -- without the mandate, the whole thing falls apart, and we're going to bear a

mr. clement. >> why don't we get started again. >> mr. chief justice and may it please the court. the mandate represents an unprecedented effort by congress to compel individuals to enter commerce in order to better regulate commerce. the commerce clause gives congress the power to regulate existing commerce. it does not give congress the far greater power to compel people to enter commerce to create commerce essentially in the first place. now, congress when it passed the statute did make findings about why it thought it could regulate the commerce here, and it justified the mandate as a regulation of the economic decision to forego the purchase of health insurance. that is a theory without any limiting principle. >> do you accept your -the general's position that you have conceded that congress could say, if you're going to consume health services, you have to pay by way of insurance? >> that's right, justice sotomayor. we say, consistent with 220 years of this court's jurisprudence, that if you

mr. clement. mr. farr? you were invited by this court to brief and argue in these cases in support of the condition blee elow on severabi. you have carried that out. we are grateful. the case is submitted. we will continue argument in case number 11400 this afternoon. >>> on your screen, paul clement, who argued all cases this week. court just wrapped up the second of the two cases they were hearing today. the afternoon case about the expansion of medicaid in the states. we're going to air that here on c-span3 in about 45 minutes. about 3:15 eastern. also going to take your calls momentarily, but as lawyers com we're going to listen in for possible comments withyou' watcn c-span3. >> we just got out of the arguments and we're actually you know, delighted that the case is now under submission and we've had an opportunity to explain to the court why the states and the nfib think the statute is unconstitutional and why not just the individual mandate is unconstitutional because that's what was argued before th

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 p

mr. clement's suggestion that they can be signed up for a high-risk pool at that point is utterly unrealistic. think about how much it would cost to get the insurance when you are at the hospital or at the doctor. it would be -- it would be unfathomably high. that will never work. congress understood that. it chose a means that will work, the means that it saw worked in the states, in the state of massachusetts, and that -- and that it had every reason to think would work on a national basis. that is the kind of choice of means that the constitution leaves to the democratically accountable branches of government. there is no temporal limitation in the commerce clause. everyone subject to this regulation is in or will be in the health care market. they are just being regulated in advance, and that's exactly the kind of thing that ought to be left to the judgment of congress and the democratically accountable branches of government, and i think this is actually a paradigm example of the kind of situation that chief justice marshall envisioned in mccullough itself, that the provisions of the con

mr. clement, you have four minutes remaining. >> a point. he says that congress will go into this act to impose minimum coverage. they went into the act to have a different purpose. i.e. to get people coverage when they needed it. to increase coverage for people. but this is only a tool. but other states, going back to my original point that there are other tools besides minimum coverage, that congress can achieve the same goals. so if we strike just the tool, why should we strike the whole act? when congress has other tools available? >> mr. chief justice, i'll make four points of rebuttal but start with justicesotomayor's question. congress identified it as essential tool. not just a toolto

mr. clemente has suggested that you can infer coercion because with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement, i want to work through that for a minute if i may because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that part of the population, 100% of poverty to 133% of poverty, the statute actually has an alternative for them. for people below 100% of poverty, it is true that there is no insurance alternative, but by the same token there is no penalty that is going to be imposed on anybody in that group to begin with right now the level of 100% of poverty is $10,800. the requirement for filing a federal incomes tax return is $9,500. anybody below $9,500, no penalty because they't income tax retur. the sliver of people between $9,500 and $10,800, the question there able to find health insurance that will cost

mrs. clemente held onto their other son, james, who was in the courtroom. it appeared mrs. jury was reading. a very lengthy and complicated result that they put in. for mr. ravi's part, he was emotionless, i think probably in shock. he seemed to stare down at the floor, not able to look at the jury as they read those results, but the family clearly in court every single day or almost every single day if not every single day of this trial. certainly happy that this part of it is done, but it's not clear to me that they will ever feel closure in this case. >> as for dharun ravi, as we mentioned, he could be going to jail for ten years, and it's so important just to reemphasize, had it not been for social media, right, had he not tweeted about what he saw, he may not be in court today. >> the prosecutors really built their case around this. he saw clemente -- nothing he ever said was sort of virulently anti-gay, he was never really, really mean to him, but when he saw him -- when he turned on his webcam, saw him and mb, this visitor that he had making out or kissing, had other

mr. clement as well. what did you make of that? >> i don't think so. as pete suggested, i think john roberts in the enwas trying to make you are sure he was even hand and fair. mainly his questions to the plaintiffs, trying to invalidate the mandate was saying, what about the other side's argument? he wasn't embracing it in any way. >> given what happened to the government today, what appears to be a bad day for them, how now is the severability case tomorrow? that much more important than they thought? >> well, the government was hoping tomorrow would be an afterthought and wouldn't really amount to anything. particularly the morning argument about severability. the people who care the most tomorrow morning are the insurance industry who are panic stricken of the idea of the mandate being gone. so the insurance pool won't rise. but at the same time still being stuck with the requirement that they provide all this coverage. >> thank you both. i think we'll be trying to check back in with you again before the end of the hour. i know you're busy. you've

mr. clemente, he's not going home tonight. >> let's go on. >> i'm talking about my life.>> i wouldn't see that either. >> i won't use that example. forget about it. >> it'senough frivolousness. >> thank you for joining me. >> good to be here. >> we had this audio out, we got to hear the personalities of the justices in a way most of the public normally doesn't. how much did we hear this week that the public heard that you hear all the time, how much was similar, and was any of it different? >> it was very similar. i'm not quite sure the chief justice two have told them to cool it. i just don't know. it can be very funny. and it can be a lot of fun and it can be very stressed and tense. and you saw all of that this week. >> what was interesting there were a couple moments late on wednesday when scalia and sotomayor were having too much fun and you got a sense roberts didn't like it. how nervous was he about the fact that they're in the spotlight in a way they haven't been before? >> look, he's the chief justice of the united states, people call him the chief justice of the

mr. clement was talking about the expansion of medicaid and the murder on the states. t prognosticate the outcome of the case. they never do. i actually interviewed him a couple of weeks ago leading into this case and he said that he never calls it a "w" when he leaves the courtroom because the justices can and do often surprise us. because oral arguments, they are not the final word. the real work now begins now in the next few days, the justices will go behind closed doors with only each other and vote on these four issues separately. and then they will begin the long and arduous and important task of writing their final opinion. so very interesting. just a little insight into the attorneys who speak before the supreme court. but on the medicaid issue, the reason why this has come up, it comes down to something that is a big concern for not only the supreme court, but for every american. the issue of state's rights versus federal authority. that's what the medicaid expansion comes down to. under the health care law, it would be expanded to include millions more people

mr. clement, we talked about all of this because it is possible to recreate jobs. i'm from the airfort. the young lady talk about education, and i've been dealing with education since the beginning of my life. but i have a wish. i think that. very often people that are independent do not have the same working conditions house volunteers as the administration's, and so i think that independent people should be encouraged to do good and therefore continuity is a challenge, and look at where it says the cultural theme. you have a lot of people who do feel better and dancing, do poetry come all these people are independent, and not a whole lot is invested in these people, and i think this is going to be bad for our descendants, for the children if we neglect culture. there is a great potential for young people coming and i think that we should encourage music, musicians to give more latitude to people who are independent. welcome culture should be encouraging otherwise we are not going to be a cultural mission. i think the culture should not be compulsory, but everybody of course can be in

mr. clement, may i ask one question about the 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 we are getting these new eligibles, and say, states, you can have it or not, you can preserve the program as it existed before, you can opt into this. but you are not asking the court as relief to say, well, that's how we -- we -- 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 addition, that 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 is a need for repair because there is a coercion doctrine and this statute is coercion, then we are into the question of remedy. and we do think, we do take the position that you describe in the remedy, but we would be certainly

mr. clement, we talked about all of this because it is possible to recreate jobs. i'm from the airfort. the young lady talk about education, and i've been dealing with education since the beginning of my life. but i have a wish. i think that. very often people that are independent do not have the same working conditions house volunteers as the administration's, and so i think that independent people should be encouraged to do good and therefore continuity is a challenge, and look at where it says the cultural theme. you have a lot of people who do feel better and dancing, do poetry come all these people are independent, and not a whole lot is invested in these people, and i think this is going to be bad for our descendants, for the children if we neglect culture. there is a great potential for young people coming and i think that we should encourage music, musicians to give more latitude to people who are independent. welcome culture should be encouraging otherwise we are not going to be a cultural mission. i think the culture should not be compulsory, but everybody of course can be in