massive government bait and switch and the fundamental question of whether the government has to keep its word after its money mandating promises had induced reliance the government suggest that there is no such thing as an enforceable congressional promise and that even the clearest command to pay money is subject to a cab that it's subject to appropriations and reliance even on clear language is quote inherently unreasonable that position is inconsistent with all this court's cases including the ones that go the government's way by finding an implied repeal for in the government's view there is nothing to repeal simply failing to appropriate the money cancels the obligation the government's position would also make it impossible to accomplish many important government objectives that require it clear and enforceable promised pay as this case well illustrates when congress made the health benefit exchanges a center piece of the affordable care act it faced a problem the exchanges depended on the participants of private health insurance companies and those companies were being asked to insure previously uninsured people on unprecedented terms the natural reaction of the insurers would have been to charge a substantial premium to account for the uncertainties but that premium would have worked against the government in two fundamental ways st it would have made the policies relatively on affordable contrary to the whole purpose of the affordable care act and nd the government would have ended up paying for those heightened premiums through tax subsidies so the risk corridor programs at issue here was an important component of the government's solution to the problem the program depended on a clear and enforceable promise that the government would pay for a portion of any losses incurred by the health insurance companies that stepped forward in order for that promise to work it had to be clear and enforceable if the government had simply said we will make these risk order payments subject to appropriations the promise would have made no difference whatsoever if all the insurance companies were doing was trading the  uncertainties about the risk pool for the uncertainties over the funding priorities of future congresses they would have gained nothing in the process so congress made a clear money mandating promise to pay based on that promise my clients and others got state approved rates to offer policies on the exchanges after those rates were already set then h h s adopted its so called transitional policy which kept some healthy people off the exchanges and as the government itself recognized meant that more insurers would lose more money but h h s said to the insurers don't worry we have the risk orders program in place and we will cover some of those excess losses as a result of the transitional policy so the policies went forward and losses were incurred and when it became time to pay the government then started pointing to some ambiguous appropriations riders legislation if the appropriations were writers had been included in the original legislation would that make a difference well ultimately i don't think it would make a difference in the sense that i think it's a little hard to figure out exactly what that would look like and i thought the reason you didn't have appropriation riders in the two thousand and ten legislation is because for this part of the policy the policies won't be offered until two thousand and fourteen and you really wouldn't be in a position to know whether or not there was an obligation until two thousand and fifteen but what if the law says the government shall pay the money shell from the premiums but it may not come from the only other identif source that could be used to pay so justice alito i think if they tried to do that ex ante in two thousand and fourteen that i think people would say that would be sufficiently strange that i think people would say well what exactly do you mean by that and i think there probably would have been a clarification before anybody relied but of course back in two thousand and ten there was none of that kind of language whatsoever and you had what i think anybody would recognize as a clear money ginsburg but it has to be inferred from the money mandating promise itself and i think it's telling that there was nobody on this court who was a greater skeptic of implied cause of actions than justice scalia but in his opinion in bowen against massachusetts he recognized it had been long established that this kind of shelp a language gave rise not just to jurisdiction under the tucker act but to a cause of action for damages i think the reason that even justice scalia no fan of the implied cause of action was able to recognize that is because if you think about the kind of obligations that are a issue in the jurisdiction over the tucker act they are all clear obligations to pay and whether it's  takings clause whether it's a contract whether it's a money mandating statute in each case there's a clear obligation to pay specific amounts to specific people and in that situation i don't think that you need to have a separate cause of action i mean you think about a contract you generally don't have in the contract cause of action to bring a breach of contract action it's implicit that if the government or any other counter party doesn't uphold their into the bargain there is a cause of action if you have the sort of shall do something other than pay money you don't have to look for an implied cause of action because i think you would have a cause of action that would arise under the a p a to enforce the particular whatever it was shall fill in the blank the action you can  force into the a p a if the action is no no i'm a damages remedy for that well i don't know that you would necessarily infer damages remedy for that but i think you would get very much the same thing under the a p a and i think it's you know it's the majority held in bowen against massachusetts sometimes you can get relief under the a p a that's not strictly limited to injunctive relief but includes other kinds of monetary relief but not damages in all of events we're not asking you to break any new ground here and i think compared to cases of this court like well white mountain apache and the mitchell case from one thousand nine hundred and eighty three it's sometimes called michel to this case is a very straightforward case of saying that a money mandating does it well i think justice kagan if you look at the federal circuits precedents this shall pay alone might not do it but when you combine that with specific specificity about what amounts are going to be paid and to whom and under what circumstances that's clearly sufficient for a money mandating promise and it as has been again i think if you think about this case in comparison to this court's precedents involving indian trust obligations this is a much more and much more and forcible promise this is not a direction to the secretary of an interior to take certain property in trust this is a direction that you shall pay certain amounts and i think one thing that makes this a very easy case if you are concerned about sort of opening up the sort of money mandating statute to wide is that you have the exact same language here in the parallel provision shall pay and nobody thinks not even the government thinks that the shall pay direction to those insurance companies that made profits on the exchanges is anything but an enforceable promise you make a case at some length about the reliance of the insurance companies they were basically seduced into this program but they have good lawyers and the constitution says no money shall come out of the treasury except pursuing to an appropriations clause and i would have thought at some point they would have sat down and say well why don't we insist upon an appropriations provision before we put ourselves on the hook for twelve billion dollars well mr chief justice i think they they did a very good lawyers and they looked at this court's precedents they looked at the precedence of the federal circuit and all those courts cases all stand for the proposition that obviously congress has the power of the purse with all respect i think they don't stand for the proposition that the only way that congress can open the purse is by making a specific appropriation it's long been the law recognized by this court and by the government and its g a o read book which is sort of the bible for these kind of things that the government can obligate itself and congress can obligate itself without using any magic words of appropriation and the governing standard is if a statute is money mandating then that obligates the government and the reason that's not a problem under the anti deficiency act or the appropriations clause is that's congress itself opening up the purse for specific amounts for specific purposes i know but i think the reliance argument has to be taken at least subject to the qualification you know i understand your argument but if somebody raised their hand and said he shouldn't we get an appropriations provision here nobody would have said well you know we don't need it because this is a money mandating statute and this in this in this and you know if something goes wrong we can get mr clement to go argue the case it strikes me that you do have the appropriations clause sitting out there and it's a pretty clear yellow light justice i don't think it's as clear as you think because look the government's position is what we needed to do was include language in two thousand and ten that said that this constitutes budget authority but of course that would be subject to a subsequent congresses amendment as well so for purposes of the retroactivity argument i think what's important here is in two thousand and ten they made a money mandating promise that i think anyone who looked at all the sources would say that's good enough now it be better could it have belt and suspenders sure but it's good enough and then they relied on that they provided the service the government had no problem saying based on the same shall pay language in one thousand three hundred and forty two we need you insurance companies that made money in two thousand and fourteen to make your payments in and at that point the st in two thousand and late two thousand and fourteen after the insurance companies has had upheld their end of the bargain they simply imposed some appropriations riders that said we're not go by their terms we're not going to use this one fund to make these payments and they didn't use language that this court has looked to another cases like from this fund or any other or this act or any other they didn't do what they could have done which is they could have prospect of really repealed one thousand three hundred and forty two or they could have prospect of really limited the amount of payments out to payments in was there some other fund that could have been use i don't think that anybody readily identified a nother fund that would have been used by the secretary of health and human services to make the payments but it's black letter law that that doesn't make the obligation go away well that is the only fund that was identified by the g a o as a potential source well the g a o in its correspondence with two members of congress a den of fide two sources of funds for the appropriations these funds were one of them and then the other one was that the payments in could be construed as user fees interestingly what were the user fees what were they paying for they were paying for the guarantee that the government would pay for their losses so even analysis of why it was that the payments could be construed as user fees depends on the notion that these were real in forcible promises but where you've now had an opportunity to study this in detail can you identify any source other than the judgment fund that could be used to pay these billions of dollars i can't justice alito and that's a problem for why the secretary of health and human services can't voluntarily make the payments without violating the deficiency act but what happens in that situation and this court made this absolutely clear in the ramah decision is when there is insufficient funds for an executive branch officer to make a payment under which the united states is obligated then they can't make the payment voluntarily they can't cut the chat but what happens then is that there's a suit in the court of claims the fact that the government can't cut the check to pay its obligation means there's either a breach of contract or a violation of the statu then there's a judgment and then you can collect under the judgment fund but the fact that the government decides that you know we have these obligations but we just don't feel like appropriating enough money for them just doesn't cancel the obligation or make it go away and i said that's really been black letter law for one hundred years in the court of claims but it would be reasonable for the insurance companies to say look we know that congress is now refusing to appropriate any money to pay us but don't worry we'll soon later and we'll get the money billions of dollars from the judgment fund justice alito at the time that they're st being told that the government's not going to pay in two thousand and fourteen late two thousand and fourteen it's already too late for two thousand and fourteen they've already performed and so as to that there's a real retroactivity problem now i think if congress at that point had said as they did in other proposed legislation that didn't have the votes if they had said prospectively we're no longer going to make payments under one thousand three hundred and forty two dollars or we're going to limit the amount of payments out to payments in at that point absolutely an insurance company would prudently change its course conduct but if an insurance company is watching congress and what it sees is there are express efforts to repeal this provision expressly going forward and they fail and all there is is an effort by some people to essentially hobble the secretary of health and human services in her ability to discharge what you have to be understood as obligations of the united states then under those circumstances the right result is to file a suit and get your judgment and then get your claim from the judgment fund but it is not the law that the government can simply make it obligations go away by deciding that after the fact after the obligations have been incurred after the counterparty has been have performed we're just not going to appropriate the money and the cyclone drought i think it very much operates eyed look i actually think the best two paragraphs on this issue is what justice scalia said in his bowing opinion because why he said if you could understand this kind of statutory offer either as a unilateral offered a contract that's accepted through performance or you could understand it as a statutory obligation and he said consistent with the position of the federal government in the bowen brief which is worth the worth a read if you get a chance but he said consistent with their position the better  it's easy to just sort of my word because the majority did not actually disagree with him on this point with the majority held was that the exclusion in the a p a was not necessarily coextensive with the so it thought the claims there could be brought under the a p a but it even said in footnote forty eight dollars that even if some of the claims could be brought into the tucker act that would be fine you could bring those claims in the court of claims but it wouldn't mean that there was because both had to shall pay language yes just a sort of middle statute right so i want to repeat my point that i don't think anything in the majority or the dissenting opinion there said that that wasn't many meant mandating language that could have been brought in the court of claims for at least retrospective relief i'm quite confident of that but there's also a distinction which is what the court relied on there was the ongoing relationship between the states and the federal government there and the fact that the that right if you look at that i don't think there's any indication that it was an issue there is something like this which is an entirely retrospective set of obligations for a program that essentially sunset in two thousand and sixteen i don't think there's any indication that the court would have thought that should be brought as an a p a action and not as a tucker act claim and of course keep in mind the government's position is not that we sued in the wrong court the government's position is that there's just not sufficient money mandating language in the statu and i think that's a very difficult proposition to sustain if you take seriously not just one hundred years of court of claims in federal circuit cases but also compare it to white mountain apache compare it to compare it to the mitchell case from  this is much more obviously money mandating language and again it was in a brief and it was in a brief where they persuaded justice scalia but not every member of the court but the government in its bowen brief essentially said that they couldn't imagine clear money mandating language than the shall pay language in that statute and here it's even clear it's all retrospective and it's a shall pay obligation to specified individuals for specified underspecified circumstance and then one other distinction i like more than two sentences at this point but one other distinction is unlike another stat any other statute i've seen you have the parallel language in what was expected of the counter party the same shall pay language and even the government says that of course that was just an absolutely mandatory obligation if you put this all together with the government's position is it's really extraordinary because they say their position is there never was any binding obligation at all they didn't even have to appropriate the payments in that just happened later congress did that through the user fee appropriation so their view is that a promise that was concededly designed to give comfort to the insurance companies that they would have some coverage against losses actually provided no coverage against  es but absolutely mandated the payments in no matter what and i do want to emphasize that no matter how you look at their position it is completely inconsistent with all of this court's cases even the ones that go in their favor and one way to look at that is under their view there is nothing to repeal but the other way to look at that is if you look at cases like langston like dickerson like will in the original statute that provided for a salary or provided prepayment none of those original statutes had language that talks specifically about budget authority so under their view those cases were really easy cases and this court completely missed the ball and miss analyze those cases it is impossible to think of those cases as  cases we shouldn't rely on to the extent we usually do because because of the judgment fund in other words we live in a different world now no absolutely not justice kagan because what happened in those cases is even before the judgment fund there were judgments and there was a judgment in that case for i think seven thousand six hundred and sixty six dollars against the federal government now under their theory of the case there should have been no judgment that judgment should have been in affirmed and back then of course once you got the judgment you went to congress and tried to get congress to pay it but and of course congress generally almost always paid it so you never had to answer the sixty four thousand dollars question of whether there was taking if they just refused to pay it i think another reason to decide this case in our favor is if you adopted the government's position you'd have to overcome not just the presumption against implied repeals but also the presumption against retroactivity and none of the cases that the government can point to ever held the private party essentially was on the hook and the government didn't have to pay once the obligation was already incurred the case is like dickerson in will they were talking about prospective obligations for the next year when this court has confronted cases where the government was saying that it didn't have to pay for past obligations cases like the twenty percent cases and the larionov case that are cited in the reply brief of land of lincoln the government never won those cases and the reason there's a big difference is when the government says we're not going to pay and they're talking about only a prospective obligation maybe it's fair to infer that they want that perspective obligation to go away but if they're to say we don't want to pay for something that's an obligation they incurred then they're actually risking i think a very serious takings violation again just as prior for the court noted that there was a potential constitutional problem with retroactive legislation of this type in the cherokee nation case so it's always been recognized that there's a big difference in this context between retrospective obligations and prospect of obligations so there's really no precedent on the government side of this case and it would be a terrible precedent to start because this is not going to be the only context where it's very important for the government and congress to be able to make in forcible promises to pay has there ever been a case where this court has in effect required congress to appropriate through the judgment fund or in any other way billions of dollars for private businesses well look i don't i mean it's a contract case but if you cut right down to it and you just are inflation i would think winstar got you into the billions of dollars as well and i think when stars another good example although it was conceived of as a contract in case the government came in after the fact and tried to tell this court that its original promises to make good on the good will were just illusory and they just you know they just didn't find future congresses and this court didn't buy the argument then it shouldn't buy the argument now i totally get the point that congress has the power of the purse but congress is not disabled from making an enforceable promise to open the purse in the future  unspecified terms thank you counsel nadler mr chief justice and may please the court as the chief justice has said the appropriations clause of the constitution is central to this case this court has described it as a straightforward and explicit command and m versus richmond that command is a central feature of the separation of powers under the constitution and it's reinforced by the requirement that appropriations bills originate in the house of representatives which was designed to ensure that the representatives of the people would have and would jealously guard the power of the purse and that system constitutional framework is reinforced by the anti deficiency act that is all part of the framework under which passed the st appropriations act after this it passed an appropriation not a rider which is usually something tangential it is the very appropriations act and the only thing they appropriated was payments in the user fees they prohibited as justice alito pointed out the only other possible source of funds this the secretary's compliance with that constitutional and statutory framework does not constitute a violation for which a cause of action can be inferred under the tucker act despite all of that petitioners do rely on one thousand three hundred and forty two dollars in the absence of an appropriation as an obligation to pay and that would d risk corridors provision the part d risk orders provision contained express language that it states an obligation of the secretary to pay for medicare part d drugs and it so why does the government not have to pay its contracts just like anybody else and that is there some language i guess they could pass a statute and say we won't pay our contract ok and you have to follow the statute  didn't they didn't say they didn't but you know you read the argument they didn't say they wouldn't pay they just said don't pay out of this fund it's common what it means is don't pay it out of this fun and in the case if you have some of the fund paid out of that doesn't say don't pay it out of that so that's very simple minded what i just said what's the answer to yet the answer is that this is not a contract why not this this c i mean it's pretty close the why isn't it isn't it either a contract or close enough it says i shall pay if you climb the pole will pay they climb the pole pay it it's very far from a contract and i think the starting premise is what this court has repeatedly said and reiterated in the national the amtrak case the national repassing your case which is statutes are generally absent a clear statement construed not to establish a contract not to establish private contracts or rights or vested rights because a statute states a policy of the legislature until the legislature changes that policy there is nothing in this statute that that  a general statute providing it's one of many subsidies under the affordable care act for people who participate in a private market they put insurers who are not performing services for the government they were working for the government they w x the government shall pay you mr veteran mr paratrooper mr you know you name it they don't really mean it is is that w contract i mean i don't know how this works it is just is definitely not a contract someone who works for the government does not work by contract government a government people are appointed and i think it's important that the langston case and that line of cases have been mentioned here st of all langston is the only case in which the court found liability and seven years later in the belknap case the court said that's as far as we're going to go and in langston what was critical is the court the appropriations language and big us that congress had appropriated had paid the amount that was called for in this and the salary statute before and the court couldn't believe that congress really meant to cut back that back here there's no question idea that congress rejected them just because they were introduced it is not correct there were two types of bills one of those one of which was to repeal it outright congress nobody says the appropriations law here repeal it the other was to make payments in match payments out so that it would be budget neutral that's exactly what the appropriation statute did i vaguely recall the government arguing on several occasions that an inactive bills are entitled to some weight in the interpretation process but you don't question that these insurance companies would not have participated in the risk corridor program but for the government's promise to pay it i don't know well it's not about participating in the risk carter program the question is they participated in them in the marketplaces that were set up the exchanges and they had a number of business and sentences was a vast new market for customers many  well whom we would get would get tax subsidies customers who otherwise were largely uninsured yes but they but it was a minority that's no great business opportunity for them oh no it is because congress provided tax credits to subsidize the the a part the persons who who purchased insurance on the expense a good business opportunity for them because the government promised to pay what's a good up or to it's a good opportunity for the insurance companies there were there were a number of in sentence here this is there were two other risk mitigating provisions in the act there were a number saying that the insurance companies would have done the same thing with i doubt this promise to pay i don't think we know what they i think i thought i don't think that they would have declined to participate they may have charged greater premiums but that's different from not participate but that's that's a materially different thing well i mean the government the congress that passed this provision wanted to keep the premiums didn't and so it induced a certain kind of reliance on what heart of the insurance wanted it wanted to encourage i think the primary point was to encourage the insurers to go on the on the marketplace and as i said they had a bunch there were a number of subsidies both of the individuals through the tax credits and the insurance companies through the risk mitigation provisions but and congress provided in the private sector that again that insurance companies were not performing services for the government they were taking advantage of an opportunity in the private that congress had the congress had established with a bunch of subsidies this is just this is just one of them they were induced to charge lower premiums by the shelp a language i think we can assume that that that that contributed to it but it was a it was a subsidy and there's something i want to say it when we're talking about the langston case and the very much difference from this context langston and that entire line of cases were cases about as i think i mentioned employment salary there was in a salary situation well while it's not a contract there is an exchange of services for money my question of you seem to have two separate organs one depends on the on the appropriations on the appropriations measure suppose there were none you know or have you know we did never been any appropriations language that didn't exist i think you want to argue even so the government wouldn't have had to pay that's correct all right now on that i don't think you're saying look through the statute books every time the statute says to any private citizen if you do x we shall pay you ok that's the form and it may exist all over the place and you're saying at least sometimes they don't have to do it or maybe you're saying they never have to do it well i hear you say well you would have to look the particular state or not that's what i wanted then you're saying some time now i think i think i think almost never but look but almost never but look at it what is the line that distinguishes those instances where the government says we shall pay you mr private citizen if you do x he does x but the government does not have to pay what is the line ok it's when that when congress wants to undertake that sort of obligation it does it through contracts it does it by authorizing an agency to enter into contracts which then forms a bilateral promise and performance back to the back to the government and if there isn't a contract never very well what is the case that supports that line that says unless government you delegate to a private and delegate to it official the power to enter into a contract with the private citizen unless you do that even though you said shall pay you don't have to ok what is the case that says that well i i don't i don't have a case of this court that says it but frankly neither does the other side and it's subsumed in a subsidy program like this all of the cases that again i want to come back to this all of the cases in the langston line of cases all the way up to will were about salaries and there is i think a sense and it's now for example in the civil service code a government employee is entitle to a salary we all understand that in fact in langston the but the background statute said that the person was entitled to the salary there is no language like that yes i'm not sure why it that makes a real difference from this case i mean those cases were about a certain kind of compensation for services rendered and this case is about a certain kind of compensation for services rendered isn't it no it's not it is this is a this is a and this is what's different this is about subsidies for people participating in the market they are not services rendered to the government there is no that people will carry out you know the incentivized program but that doesn't mean congress has made it has created a vested right and then again i want to come back to the amtrak case and referring back to the dodge canonical statement and that is that an act that a statute an act of congress absent clear indications is not construed to create a contract and is not construed to create vested rights it establishes a policy which the clear in the case what clear indication would be required short of a contract we had and we have an example i mean tellingly in this case we have an example in the part d medicare represents an obligation of the secretary to pay this for i'm sorry this trickle ment says that there are also many provisions that say in essence shall pay subject to appropriations well the another words congress knows how to prevent the obligation from being from taking effect before the future appropriation in fact does so often and did so in the affordable care and the if affordable care act i i think  it's just want to point out to the court they cite a handful of provisions of the affordable care act and there are almost all in specialized grant programs but it's telling if you look at them they're ones that are immediate one also grant programs and don't have it and the same thing is true with two hundred and ninety three dollars k to eat which they say the one that to immediately preceding don't have that language there is no rhyme or reason in the in the act for that it's not entirely clear what the subject to appropriations language does we frankly look to see if there's an appropriations or statutory principle we were unable to find one i think it may be it's pretty clear what the subject to appropriations language does it puts people on notice it says this is not a guarantee that says you know you should take this with a grain of salt and when it's not there the government says is we're committed i think that would be a great over reading of the of those provisions which i think may be present just as a matter of habit in particular committees that i think they are house keeping within the government you have an authorizing committee that sets up the program but  appropriations committee that comes comes along later but i don't think the presence or absence of this but the the appropriations clause and the out to untie deficiency act state this very rule and congress is intitled to rely upon that and not expect that that in and further cause of action would be inferred the i've never understood the n t deficiency act to apply to the actions of agencies i understood it to apply to individuals who go in obligate the government when they really had no authority to do that i never understood it to mean whatever the particular agency or department pays money that they're going to be prosecuted under under that well the elements revision the agency wouldn't but th but the criminal statute is the way in which congress doesn't force ok so the secretary of the tertiary is going to be prosecuted criminally because of his interpretation of whether or not the funds were all well i mean if the reasonable interpretation is probably not going to be prosecuted but but  described program not of direct statutory command but even so putting that to one side it speaks to the secretary of the anti deficiency act speaks to the secretary it tells the secretary but but it's contingent upon the subsequent appropriation and here when congress subsequently appropriated it limited the amount of funds that were available and in deciding whether some inferred cause of action you should look at the entire interesting but let's take a form of words if back in that simple if you do x we shall pay why now where we left off was if that form of words appears in a statute congress doesn't have to do it but if the statute says a g s twelve can use those form of words write them down hand them to the other side then they have to do it ok because that's a contract that's where i think we were and there is no authority either way or if there's no good authority either way to use a word that's not always appreciated court as much as i do what policy could that rule serve what policy constitutional or otherwise would be served by a rule that says a g s twelve can make the united states pay the money but the congress of the united states house and senate signed by the president cannot i don't doesn't not does not i think fundamental policy is st on the st on the contract side a contract is a is a document that is bilateral that is signed by each party there are we separate undertaking specific to that individual and in that in that situation where you have an appropriation rama was a contract it's not a statutory case and what the court said there when when you enter into a contract you are entitled to be paid because the individual contractor who has who has performed services to the government and expects something in return temp expected to keep track of the appropriations account and can't be responsible if the agency devotes funds to other purposes a statute is fundamentally different it is not an individual bilateral relationship in which the government says we will make a commitment to you if you do something and the fundamental point in the statutory side i go back to the amtrak and passion railroad case in which the court said that a statute absolute clear statement is construed not to impose a contract or vested rights and that is in deference to congress and and this context it's tied back to the appropriate if we were to rule for you everyone will be on notice going forward private parties in congress itself that shall pay doesn't gade actual payments if we rule against you congress also be on notice going forward that it needs to include subject to appropriations kind of language in any mandatory statute my question is if we rule again sure there are other existing statutory problems lurking out there in the interim one of the problems is we don't know what what may be out there statute i mean we there are ther shall pay situations but again they that there is usually not in this type of program which is a generalized subsidy for people participating out there when congress wants to commit itself to making payments to private people it usually does it through specific instruments through contracts and through grants and that is out of the way this i really don't know why legislation can't be regarded as just a specific as the contract and i think in other words you keep saying a generalized subsidy is that just a repeat of your argument no words no money mandating language can be considered to create an obligation on the part of government because you would call that without an appropriations provision simply a subsidy well i'm trying to draw a distinction between the situation where there might be a bilateral relationship either in contract or an all of the case i know and i'm trying to push it to the sea where the limits of your argument are with without regard to any type of appropriations language there is no situation when the government makes a promise to an entity to engage in activity to climb the flagpole  briar's hypothetical there's no way that that would be regarded as money mandating if it were so if there were an appropriations language i think that would be the general rule but let me point out here there there is no language of promise  this and this statute there's no language of entitlement on the part of the of the insurance calif a right well it's an instruction to an agency to pay but when you have a discussion to an agency to do anything it is always condition it's not so much even that the agency will keep its promise but that the agency will keep its promise to the government i mean right i mean you're suggesting just because the government told the agency to pay that doesn't mean the agency has to no you know it well the agency the agency kept under the constitution because an appropriation is not available and there's one other pm sorry that let me let me stop there just a moment following your analogy and i do understand that you're saying it's not a contract with the recipients because this is a order to the secretary and the order to the secretary says devise a program pay out this amount to the participants who suffer a shortfall and it says that's the program you have to set up so that's the program that they set up in two thousand and fourteen they give assurances that the government has promised to pay and in two thousand and fifteen they say the appropriations bill limits how i can pay you but it doesn't receive in and it doesn't tell me now that you won't be paid he will do so why isn't this an in forcible contract where the government this pound the agency was acted consistent to the legislation and to the directives of congress a violation of law that gives rise to an implied damage remedy in the in the court of claims and one other people just can't you can't say to me the congress is not empowered to encourage the secretary that adopted a rule of construction and under under that statute it says that a law shall not be construed to make an appropriation or to authorize contracts in advance unless it's  specifically states that is a clear and evolutionary are are insurers obligated to pay in if they have excess profits yes it is so this is one where the shall pay in is obligatory but the share payout on the part of the government is not obligatory the paid in is not subject to approach is not an appropriations question it's an obligation and and that part of that part of the arrangement the rest of  kind of a statute is that i i don't think that's a fair characterization because just like just like any just like any program where congress directs the secretary of whatever department to establish a program the secretary can't go forward with that without appropriations that includes a subsidy program that includes a regulatory program that all manner of programs and that's what happened here it would be a dramatic change for this court to say that when when congress says that an agency shall establish a program and pay out money under that that of congress declines to appropriate the money for it that gives rise to a and applied cause of action in the under the tucker act we have three reasons why that shouldn't be so justice ginsburg's point that against implied causes of action the amtrak case that says an act of congress is not to be construed to create contractual or or vested rights in private persons and the appropriations cla and forty two dollars an appropriation as the source of money to be paid out under the judgment fun but the judgment fund is available only if there's a violation and there's no violation to begin with but even if even if you thought that there was a a  commitment a binding commitment of some sort the appropriations act here congress clearly intended not to not to provide for payment so i think a respect for the way in which appropriations have been understood and congress's power over appropriations have been understood for hundreds of years it's important for this court to not impose monetary an implied monetary liability under under the under the tucker act and to extend langston from its very modest context of salary to which the statute said he was entitled language that is not present here to impose liability on the government and billions of dollars not seven a modest context but isn't it the same principle i don't think it is the same principle because the distinction is the salary the salary of someone who was working for the government and one of the statute said he was employed on to it again we don't have that here but even without that language i think one would one would think of someone working for the government he's delivering services to the government that the pay that is owed him is in reciprocity for that that's far different from a subsidy program in which which congress without a contract without a bilateral relationship without an individualized promise has made money available under a generalized subsidy program that's the it's a huge huge difference and all the cases in justice scalia's opinion dissenting opinion and bowen versus massachusetts chief justice and may it please the court i'd like to start off with justice kagan splint that the government takes the payment in obligation with the exact same language to be absolutely mandatory and i assure you if one of my clients when presented with the bill said we have a bunch of internal rules at our company and i actually can't disperse the funds into i get approval from the treasury division of our company i don't think the government would be impressed by that and they certainly wouldn't say that the mandatory obligation just somehow disappeared because the rule said we didn't have the funds to pay it at that particular moment i'd also like to talk about the subject to appropriations language because that's not just a feature of many other provisions of the affordable care act i asked one of my associates to look at how many times that appears in the u s code when he gave me two hundred i told them he could stop this is a recurring provision in the u s code and they would wipe out two hundred references to subject appropriations they would mean absolutely nothing text matters here obviously they don't want to talk about the text of the appropriations riders because the text doesn't have language that says repeal it doesn't limit payments out to payments in it doesn't even have that this or any other act language that was issuing will or dickerson and to be clear that's not because congress forgot how to use that phrase the same two thousand and fifteen appropriations act had multiple provisions that failed to appropriate funds and said no funds available under this or any other act there were also provisions in that same two thousand and fifteen appropriations bill that expressly repealed substantive provisions so congress knows how to repeal it knows how to in phatic limit funds it didn't do that here is another point that i want to make clear here is just my friend has used the term subsidy a lot in describing this program this really doesn't feel like a subsidy because nobody none of my clients get paid a penny in less they suffer actual losses so this is not a great subsidy program if the only way you can get paid a penny is if you lose lots of money by losing money by providing your products on the exchanges so what i would describe this program as is essentially more like an insurance program the government says we very much want you to do this and if you do it and lose money in the process we shall pay a percentage of your losses that's why this retroactivity here is so is because what could be worse than getting an insurance policy and at the point that you actually suffer a loss and try to make a claim they say oh i'm sorry we just decided we weren't going to fund that policy even though you performed even though you suffered actual losses so i really wouldn't describe this as a subsidy program my friend on the other side suggested that there's no case law one way or another on this i just respectfully disagree i think the white mountain apach e i think michel the one thousand nine hundred and three mitchell decision sometimes referred to as mitchell to our cases where this court said there was money mandating directly from the statute and those were indian trust cases where the direction was much less specific than this you shall administer this property in a trust and the court found in action there you really had to do some inferring and some implying to get to the cause of action not so with respect to this kind of direct shelled obligation my friend also relied a lot  on the amtrak case i think it's worth taking a closer look at that case because the kind of contract issue there was the kind of contract that would essentially bind the federal government in perpetuity and prevent them even from taking action prospectively so there it was basically about whether the employees of the railroads that got consolidated into amtrak were going to get a free pass for life and the court in that context it would want to bind future congresses forever on that but this is different  whether you're going to be bound to a contract where the counterparty is already performed to their detriment and in those circumstances i don't think there should be any special rule again i think the two paragraphs in the poem dissent are exactly right i think this is a unilag contract it's accepted through performance and then the government has to pay but if for some reason you think you don't get a contract unless the statute says the word contract then you just treat it as a statutory obligation to pay my friend said that all those cases of justice scalia relied on are salary cases it's not actually true there are also pension benefit cases there for pensions that are available or special benefits that have been vailable to law enforcement officers and firefighters so this is not some principle that's been limited strictly to the context of salary provisions and my final point is on what congress was trying to accomplish here there is no question that they wanted to get the insurance companies to provide these policies but there is equally no question that they wanted the premiums to be relatively low and in thinking about the billions of dollars that this failure to uphold their obligations is going to cost the government you shouldn't lose sight of the fact that they also save billions of dollars in tax subsidies by reducing the premiums through this through this commitment thank you thank you council cases submitted