donald verrilli: that's correct.ice breyer: -- where can you point me in the record where this was made by the agency? it is a very important principle of administrative law that we will only uphold the rule based on arguments that were considered by the agency. it is not something i recall. donald verrilli: you are exactly right in stating in principle our argument in this case is that this question here is under and one a -- n1a, says that epa shall regulate under this section if he determine that such regulation is appropriate and necessary. therefore when ep makes a judgment to regulate under this, it is appropriate and necessary. justice scalia: well you're just seeing the argument is right. the agency must have arrested its decision. donald verrilli: i think that the agency in the order of being challenged here did use the approach. but beyond that it would be one thing if this were a case in which you had a situation that epa faced a situation where 50% or 75% were going to raise -- face vastly economic conseq

verrilli: we don't give chevron deference. justice scalia: give that to me even when i'm in dissent. mr. verrilli: the eeoc sets the enforcement policy. that's a significant fact. we took it into consideration in the deciding what the position of the united states should be. justice: would your position be the same if the 2014 guideline had not been adopted? mr. verrilli: we didn't take that position before 2014. and i i don't know how to answer that question because we took the position in light of the guidance that was adopted in 2014, which we do consider to be significant and we have to weigh our interests of the law. and did so on a considered basis and came to the considered judgment. impose comparable limitations. justice: give me that again. and the words you added were -- mr. verrilli: on the basis of their condition. and the reason that is the sensible and best reading of the statutory text is because this is focused on the condition and not -- justice: at the very beginning, you listed three things that you said wer

don verrilli said, well, this congress, your honor? his comment drew laughter in the chamber and a smile from nancy pelosi who was sitting in the front row. i can also tell you after today's oral arguments, a lot of people are openly wondering if the swing vote might not be justice roberts but anthony kennedy. at one point during the oral arguments today, justice kennedy asked a question in which he seemed very worried about the prospect of the supreme court effectively destroying the health care system in more than three dozen states with this one ruling. he said to the plaintiffs' attorneys today, quote, there is a serious constitutional problem if we adopt your argument. this is my favorite data point from the whole day today. after justice kennedy said that, in the oral arguments on this case, look what happened in the outside world. look at the headline here. hello? do we have it? oh, come on. hospital stocks surge. come on, hospitals had argued -- all right. hospitals argued they would suffer significant harm by striking down oba

as correctly put by solicitor general verrilli, the federal exchanges would then be a shell game. they would be a shadow exchange. no one would buy and no one would sell of those exchanges. it would be unaffordable. >> what would be the ripple effect? x >> insurance is done state by state. they would be insulated. you're talking about 34 states and the majority of the u.s. >> this has affected many insurance companies and hospitals. it wouldn't affect [inaudible] >> you can still have insurance in states. a lot of blue cross blue shield plans are state-based, for example. insurance companies are very nervous about this. it would destabilize the system. let me add one more point, one reason congress cannot solve this problem the way justice scalia suggested there is a big scoring issue. you would have to fight about hundred $50 billion to remedy the problem the with the congressional budget office scores this. there is no way of finding $350 billion to solve the problem. it is a difficult problem not trivial, as justice scalia suggested, they can just pass a law and say the exchang

general verrilli, let me ask you this about notice. we get lots and lots of amicus briefs from states. and we got two amicus briefs from states here. 34 states, i think, is -- that's the number of states that declined to or failed to establish a state exchange? >> correct. >> now, if they were all caught off guard and they were upset about this, you would expect them to file an amicus brief telling us that. but actually, of the 34, only 6 of them signed the brief that was submitted by a number of states making that argument. 23 states, 23 jurisdictions submitted that brief. 17 of them are states that established state exchanges. only 6 of the states that didn't establish state exchanges signed that brief, how do you account for that? >> so, i guess i'd make two points about that, justice alito. first, you've got states there, 22 states in both camps, all of whom told you that they didn't understand the statute that way. now, with respect to the other 8 states that filed the amicus brief on the other side, i actually think there's quite

general verrilli, let me ask you this about notice. we get lots and lots of amicus briefs from states. and we got two amicus briefs from states here. 34 states, i think, is -- that's the number of states that declined to or failed to establish a state exchange? >> correct. >> now, if they were all caught off guard and they were upset about this, you would expect them to file an amicus brief telling us that. but actually, of the 34, only 6 of them signed the brief that was submitted by a number of states making that argument. 23 states, 23 jurisdictions submitted that brief. 17 of them are states that established state exchanges. only 6 of the states that didn't establish state exchanges signed that brief, how do you account for that? >> so, i guess i'd make two points about that, justice alito. first, you've got 22 states there, states in both camps, all of whom told you that they didn't understand the statute that way. now, with respect to the other 8 states that filed the amicus brief on the other side, i actually think there's quite

verrilli took the podium i think you saw that heavily hammered.dea that this isn't an ambiguous provision. this is a provision that everyone understood at the time to provide subsidies to both federal and state exchanges. >> woodruff: the high court is expected to decide the case in late june. we'll look at today's arguments in detail, after the news summary. >> ifill: there's new confusion over same-sex marriage in alabama. last night, the state's highest court ordered probate judges to uphold a ban on gay marriage, despite a federal court ruling that it's unconstitutional. today, some counties stopped issuing licenses to gay couples. >> woodruff: the justice department confirmed today it will not file civil rights charges in the killing of michael brown. his death, last summer in ferguson, missouri, touched off national protests. then-police officer darren wilson said he feared for his own life when he shot brown, and today's report backed that account. attorney general eric holder. >> i recognize that the findings in our report may leave some t

. >> reporter: obama administration solicitor general donald verrilli said the epa did its own cost analysis after it set health guidelines. the epa estimates the costs at $9.6 billion per year for the utility industry but produces 37 billion to 90 billion in benefits and prevents up to 11,000 deaths a year. environmentalists argue it's n how the epa approached auto pollution law making. >> throughout the clean air act, congress said the initial decision about whether to regulate pollution should be a decision about public health and then what congress said throughout the clean air act and in this provision that when you then set standards, you take into account costs. >> reporter: the epa rule at the heart of this case has already gone into effect. but any decision by the high court could in the future mandate cost-benefit analysis as part of regulation review that would be a game changer. for "nightly business report," i'm hampton pearson in washington. >>> and just yesterday, by the way, the supreme court issued a decision that could affect securities lawsuits. the high court said investo

. >> general verrilli, you'll have an extra ten minutes as well. >> let me start by telling you where we stand on standing and i would appreciate to summarize what i think are the two key points in this case. with regard to standing, the question turns on whether any of the four petitioners are liable for the tax penalty for 2014. now this case was litigated in the district court in 2013 based on projections on the part of each of the four petitioners that they would earn a certain income in 2014. they filed declarations saying. with two of the four they would qualify for the unaffordable exemption and not have standing. with the other two they wouldn't qualify and they would have standing. but those were projections in 2013 about their income in 2014. 2014 has now come and gone and we know -- we don't know but the petitioners know whether any of the four have in fact -- are in fact liable for the tax penalty and that would depend on whether income in 2014 matches their projections. and mr. carvin said there was fact finding for this. the petitioners did file a motion motion for summa

i got, i think killed of the standing issue so it didn't come back and give it solicitor general verrilli was not giving them any solace. i think it was a nonissue. in terms of the vigor of the candidates changed a few points, there was literally the justices were not only interrupting my answers, they were interrupting their brethren's questions. it was a very hot bench and unused to hostile questions. this one was maybe unique because for the first time i've ever seen chief justice roberts just on his own site, you get 10 more minutes. he gave us 10 more minutes because he knew it'd been impossible for us, for me to get any answers out. >> let me go to the dark side for a minute and just ask, if court somehow roles -- rules that the statute means what it doesn't say, are you able to discuss at all what you think that means for the loss of statutory interpretation of the future? speaker: well, if they continue to interpret statutes the way that you would have to interpret this statute to mean north means south, black means white, then will literally be no law in the united states, right?

verrilli took the podium i think you saw that heavily hammered, the idea that this isn't an ambiguousrovision, it's a provision that everyone understood at the time to provide subsidies to both federal and state exchanges. >> thank you. i just want to emphasize one of the points that justice kennedy made today which is that the law , was written by congress to provide a affordable health care to all americans and to provide first aid flexibility. ironically, it is michael carvin and the petitioners' argument that would be coercive to the states, not respect the states' choice in this matters. congress specifically aloud for -- allowed for flexibility for states to set up their own exchange or to allow the federal government to run those exchanges in their stead. we believe that if the court follows the plain text of the law, if they follow their clear precedents on the idea that you read a law in its entirety and in its context just as tissue -- just as justice kagan made strong points about the need to read the law in context. it's clear that tax credits are available to all american

and i think as correctly put by solicitor general verrilli, the federal exchanges would basically be a shelf game. they wouldn't -- they'd be a shadow exchange no one would guy and no one would sell on those exchanges. >> what would be the ripple effect in other states? >> it probably -- insurance is done state by state. they would be relatively insulated but you're talking about 34 states in the majority of the united states. >> despite the fact that many insurance companies and hospitals are multistate or interstate corporations, again it wouldn't affect -- >> well, you can still have insurance in states and a lot of states have players that are only in their state. a lot of blue cross and blue shield plans, for example are state-based. but it would, the insurance companies are very, very nervous about this because it would totally destabilize the system. let me make one more point. one of the reasons congress can't easily solve this problem the way justice scalia suggested is there is a big scoring issue. you would have to find about $350 billion to actually remedy the problem bas

very revealing exchange i think during the argument where justice scalia said to solicitor general verrilli, who by the way i thought did a fine job of arguing. he's a very able advocate. but i thought here he made a real mistake. justice scalia said if these policy arguments are so convincing we've got congress across the street and they can fix it. and the solicitor general said this congress? which -- which elicited this kind of snarky laughter. but, i was looking at chief justice roberts and some of the other justices and the notion that the solicitor general of an administration would say, your deference to congress turns on the partisan composition of who is leading that congress is extraordinarily insulting. it's something that the court's never going to take seriously and i thought they were blanching at that notion. particularly since, my own prediction is this congress will actually take steps in the wake of our victory, numerous op-ed by senate and house leadership saying that there's a way to fix this come a better way to fix this thing but there is a way to fix it. i'm hoping t

. >>> general verrilli? the second clause of the pda advances that interest in a narrow but important way. i say the second clause is narrow because it is not a freestanding accommodation requirement like the religious title 7 or like the ada, and i say it's narrow because there is only one thing an employer can't do when it affords benefits or accommodations. it can't draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work. >> that wasn't the position the government took in the u.s. postal service policy. we are told that the government defended a policy that is, for all intents and purposes the same as united parcel service. and more than that, some briefs called petitioner's position frivolous, contrived. that was the government's position, so will you explain how the government -- the postal service still retains as far as we know, the exclusion of pregnant women. >> of course, justice ginsburg. it is correct that they impos