that reading is contrary to the court's construction of the same test it's at odds with how congress and the president understood the amendment and it would attribute to congress an intent to do exactly what this court said would be unconstitutional again respondents argue that if it single provision is now unconstitutional and every other provision of the act must also fall at the starting point of any remedial analysis would be the strong presumption in favor of severability and here the test and statutory structure powerfully confirm that presumption after a year of debate about the future of the a p a congress made a single surgical change it made five thousand dollars a on enforceable by eliminating the only legal consequence for not buying insurance and it kept every other provision in place so we know the rest of the ash should remain an effective five thousand a is held to be unenforceable because that is a very framework congress itself has already created mister chief justice i welcome the court's question thank you general mongan if i'd like to begin with the standing issues is someone who does not follow the mandate and purchase the standing stage they still can't establish standing because there's no threat or even any possibility that a command would be enforced against that well so if someone who doesn't purchase is a command i suppose they'd have to say that they file lated the law and if they had allege that they were applying for such a job and employer was going to use such a form then that might be a viable theory of standing but of course there's no such allegation  before us here today let's say congress passes a law saying everybody has to mow their lawn once a week and they even make a lot of findings about why that's a good thing you know it makes the country look neater you get fresh air if you have to do that supports the lawn mower business and what the fine for violating it is zero dollars do they have standing i mean the neighbors will see that they're not obeying the law  the objectives of congress will not be fulfilled in other words will certainly be injury to that person and i wonder why i wonder if under your theory that person would not be able to  american booksellers that it's not enough to say that i'm injured by complying with the law you also have to show some real threat of enforcement and here of course congress eliminated the only enforcement mechanism in five thousand  honor i think under this court's cases the question comes down to whether there is a real threat enforcement if it's just a bear come in and i don't see how that would be consistent with cases like holder that have looked not just to the question of whether it's a command but to whether there is a threat or possibility of enforcement is that consistent with some of our for example st amendment jurisprudence where without a way that harms me and indicates you know were not in the st amendment round by the state have suggested that there might be some serious harm from the effects of rd party conduct that might have been a viable theory but their problem is that they have standing stage i suppose they could do that in the process of evaluating the federal government theory of standing by severability we don't think that that is a theory that ever been endorsed by this court and it seems like it would create some serious tension with this you justice prior well follow up on justice thomas is question what do what do you what do you how do you respond to the united states theory of standing so it's a novel theory it's never been endorsed by this court it would create a fairly massive little paul an article three because in the a p a contacts for example any american who is regulated by a provision of the biosimilars or the menu calorie count provision would be able to challenge five thousand dollars a year without showing that that provision actually harmed them and i do think it's intentional with this court's article three president in several respects st with the court has indicated in cases like dial chrysler is that a point it needs to establish standing for each claim and they need to show that they are injured by the allegedly unlawful conduct or provision and here we'd be allowing on the government's theory pointis to proceed adjusted gross income and that this method of calculation has greatly increased number of persons on medicaid in taxes so i think by about one hundred thousand persons  constitutionally and permissible and that's just not a plausible construction when you consider that congress was well aware of this court statutory construction it relied on that choice creating construction and used it to just yes i don't know i suppose it's possible that the federal government could bring some sort of enforcement person and against them where that an individual could could sue on the theory that they should be eligible for medicaid  a related question about what would happen if the i r s attempted to assess penalties on state employers for failing to comply with the reporting requirements and sections sixty million five  as a defense in response to such a claim but that doesn't mean that at that point if they can go into court and establish a article three to injury tied to five thousand dollars a sufficient to exercise the court's jurisdiction  e sotomayor counsel if i understand and please tell me if i understand your point correctly which is if they have claims challenging the provisions that justice alito asked about they should have brought that challenge not a challenge based on the individual mandate correct that exactly right here on or and although they have discussed a lot of the costs that flow from other provisions of the a p a they haven't not legally enforceable for plaintiffs to read the the individual mandate as a legal command you answer justice roberts questions in a hypothetical but i'm asking are you accepting that hypothetical or for that assumption not hypothetical have used a wrong word assumption or do you have what's your best argument that it's not a command no we're very prominent holding about this provision and n f i b and of course they would also consider the very public and repeated pronouncements of the president and members of congress who said we've gotten rid of the individual mandate and now you're allowed to freely choose are not harmed by the costs the more people in rolling insurance as a legal matter where is is that is a factual matter you think they have not yet demonstrated that they were harmed as a factual matter your underwear on summary judgment it was their burden to introduce specific facts showing that amended five thousand a actually drives up their costs they put in twenty one declaration but they didn't actually address that point so how do you deal with the argument that  you had the burden of coming forth with evidence but you don't think that that consistent with the president at the plaintiff's burden that summary judgment to establish if they have satisfied the requirements of standard just kagan general just going to continue in on this point of the state stand and why wouldn't it be right to say something like you can expect that as a result of this long war people will buy insurance even when there's no one for spent mechanism just the force of law itself will encourage people to buy insurance and texas is now saying well that costs us money it costs us money because of its effect on programs like medicaid and it costs us money because we have to send out these forms saying that you want insurance i think that those are texas two arguments well your honor we think under this court's preceden cases like a little high that might be enough at the pleading stage but that it wouldn't be sufficient at the summary judgment stage but frankly your honor if we were misreading those cases we'd be happy to lose on the issue of state standing and litigate this case on the merits and then and how about on the individual playing to size this is going back to the chief justice questions i mean why is and why shouldn't the force of law itself you know a person can say if the law says i need to do a doctor appointed that i'm looking at this law that says that i can't give advice to my patient and i think the law unconstitutional and it harms me because i'm not able to give advice on the court said well that's not enough you also have to show a real threat of enforcement so i think that would be a departure from what this court has indicated before and it might open the door to quite a number of additional pre enforcement challenges  that's not my understanding your honor i think that this court made clear in n f i b that the only legal consequence of not purchasing insurance is the requirement to pay a tax and congress has repealed or  that change your view about the individual standing potentially although i think what this court has looked to is not just the possibility of an enforcement action but whether there is a real threat of enforcement and here i don't see because the federal government has indicated that there is no further requirement for individuals to purchase health insurance at least at the highest levels of the executive branch that a signal was sent out to the country so individual americans would have to wait for some action before bringing a lawsuit challenging the federal statutory command well that's our understanding of your cases your honor but again if we are for misreading the standing cases we're very happy to li gate this question on the merits because we don't think that they have any plausible basis for reading this as a command and we'd be happy to have the court reach that question either at standing or on the merits and then with respect to the states begin picking up  think i thought i heard you do you agree that the theory of standing that that there's raised costs on a mineral meant based injuries are compliance based injuries could be enough to secure a standing it's just a fail proof that the summary judgment stage is a fair summary of your position if that follows from department of commerce state can establish standing if the predictable if they if they actually we identify specific facts showing that  choices by rd parties are going to drive bob a cause but unlike the census case where we had a lot of expert declarations and specific facts and details government memoranda showing that connection taxes here is just not introduced any specific facts indicate in that amended five thousand a would inflict a concrete harm on the finest state so all we need is a substantial risk of a predictable of the effect of government action on the decisions of individuals why isn't the congressional budget office report stating that even after the penalty is removed a small number of people will enroll because of a willingness to comply with the law and follows from that that there will be data backing it up and to disagree with i don't think that we have any basis to to agree or disagree with it so it's an uncontested fact in the record no i don't i don't believe that's right your honor it doesn't say anything morning general mongan to pick up on individual standing questions is the chief justice and justice is kagan and gorsuch suppose congress passed a law requiring every american who lives in a house to fly an american flag in front of the house there's no penalty and the question then is individual standing under lou hahn you're the object of the regulation as a homeowner it's a force acquisition of an unwanted good or  service why isn't that enough to give you standing knowing that some people are going to do that by the flags and fly them simply because congress requires that search mentioned do you disagree that some people will follow the mandate and purchase insurance soley because of their willingness to comply with the law but i don't have a basis for disagreeing with it or a that your honor i think it is unlikely as the dissenting judge below noted that individuals who wouldn't already take advantage of the very generous medicaid programs or state employer health plans would do it solely because of an unenforceable command but again if we're wrong on that it just brings up to their untenable merits theory that congress has created a command that this court said was constitutionally and permissible even as it was telling the american people that it was trying to get rid of or make an operative this provision the point that you mentioned allowing stan the individual standing here might open the door are you aware of any other examples in the routinely created inoperative provisions it's done so since the founding and they haven't been viewed as constitutionally problematic because they don't alter legal rights or responsibilities or bind anyone thank you just as per what that congress didn't repeal the provision i mean you said earlier repeal and then you corrected yourself and said they're out out i mean you're asking us to fund treat it as if it functionally had been repealed but that's not what congress did is that matter operating under reconciliation procedures that allowed it to make the change compliant with the byrd rule and cabo had told it that there was no material difference between repealing the provision and zeroin ask you another question that's related to some of the hypotheticals you've heard some foreign so far and the chief asked you about a mandate to mow the lawn and you know justice thomas asked you one about forcing people to wear a mask in this case you know and as i understand it to be the case you have to certify whether you've complied or not and then the government keeps track of that so the government keeps track of whether you are mask or whether you purchase health insurance that change your view of whether there's an injury well i'm not sure that there is an ongoing certification requirement at least in the tax forms your honor perhaps that would change the analysis but if we get to the marriage then i think that it's plain that this is not an operative provision and there is no ongoing income and so even if that would have sabotaged standing it wouldn't be enough to allow the individuals to prevail on on the merits and your honor i would like to just make the point that if the court were to disagree with us on the merits and hold that this is a naked command then the only proper remedy for that would be an order making the provision unenforceable and holding that it's invalid at  completely address the problem what would be deeply problematic for the plaintiff or the petitioner state and for the rest of the nation is if point of store allowed to leverage this single inoperative provision to tear down hundreds of other will but let me let me just return to the question the merit so the state has said these points to ninety five the n c you require as part of purposes one to certify whether or not one has maintained the minimum coverage necessary is that incorrect when you're under the states you have to send out the forms so they are required by separate provisions and they serve continuing purposes related to the premium tax credit in the employer mandate that have nothing to do with five thousand dollars a so those are cost that they would continue to have regardless of whether five thousand dollars they were on the books or not and individuals don't have to certify whether or not they've maintained coverage well that irish website makes clear now amendment was to make five thousand a inoperative and unenforceable not to impose the very command business course that would be unconstitutional and the current status of tory framework makes clear that congress wanted every other eighty eight dollars provision to remain in place and that are functioning perfectly well without an enforceable five thousand a it would cause enormous regulatory destruction of and the markets catch twenty million americans off health insurance during a pandemic and cau respondents are asking this court to do what congress refused to do when it voted down repeal of the a ca in two thousand and seventeen but their argument is untenable the two thousand and seventeen congress did not convert section five thousand a from a choice to a command the amended statute doesn't require anything of anyone and even if one misconstrues five thousand a as a mandate it's not plausible that the same congress that had just eliminated any economic pressure to purchase insurance nevertheless thought that an unenforceable mandate was so vital that its invalidation should do in the remainder of the a ca there is just no way that congress would have preferred an outcome that throws twenty three million people off their insurance and protections for people with preexisting conditions and creates chaos in the health care sector responses arguments take constitutional adjudication as a game of gotcha to a whole new level but this is not a game this court's precedents require respect for the constitutional role of congress and those precedents emphatically foreclose the outcome money from the people who forced to buy insurance to cover all the other shortfalls in the expansion of health care the and the priest here on the other side go over all that but but doubt the representation is that there are no everything's fine without it like why the bait and switch i was was congress wrong when it said that the mandate was the key to the whole thing that we spent  spent all that time talking about broccoli for nothing mister justice in two thousand and ten i don't think there's any doubt that congress made a predictive judgment about what would be needed to create an effective market and they adopted a carrot and stick approach and there were a lot of you know their policies were attractive limited co pays no annual or lifetime caps they were generous subsidies to draw people into the market and it was easy to enroll because of the exchanges but there was also a stick the tax payment if you didn't enroll and i don't think there's any doubt that the do one thousand ten congress thought that stick was important but it's turned out that the carrots work without the stick that's the judgment that the congress made in two thousand and seventeen that's what c v s told caught out with a c b all rather told congress that what will happen if we repeal the mandate outright what will happen if we see our lab tax and c b l came back and said whether he's iraq the tax or you repeal the mandate the effects on the market will be the same the market will remain stable over the coming decade and if filed by the health insurance industry the blue cross brief a have brief if one looks at the a m a brief all of those briefs are confirming that that judgment was correct that it turns out that the carrots worked without the stick but enough people into the market  to allow it to sustain itself and you know congress is allowed to learn from experience empirical experience in the world and adjust its policy choices and that is what happened here general mongan was asked about whether the burden on the state was enough to support standing the course he had a little bit of a conflict representing the state but what you don't do you think that that burden is sufficient paperwork burden essentially no your honor i don't because the paperwork burden flows from provisions other than section five thousand and eight and so unless the court were to accept the standing through in severability theory i don't think there's a basis for finding finding standing on the so the affordable care act and i know the assessment has changed but the provision hasn't changed with the exception of the penalty could you explain why that penalty provision was so critical to the well i think your honor this does go to the heart of the severability question and i guess the argument that my friends and i side are making is that the continued existence of five thousand a sub a even though it's on enforceable on there's no tax anymore  still central to the operation of the acts such that under the courts and severability precedents congress would have preferred that the entire act come down if that provision were struck down and i think there are four reasons why that can't be right st you have to accept that the two thousand seventeen congress said we're going to eliminate any financial pressure to stay in the market but the moral suasion is still so important that the entire law has to fall and i just don't think that's a plausible account of what happened to some one thousand and seventeen  congress asked the c b o whether what would happen if they repealed what would happen if they zeroed out the tax and the c b l came back and told congress that's on the market will be the same either way in other words there will be no material difference between sponsors the committee chairman they all were shouting from the rooftops that they were repealing the mandate and giving citizens complete flexibility about whether to purchase insurance that is not what you would be saying to the world if you thought that moral suasion was essential to keep the system going and finally even if you thought that congress really did have an interest in continuing most suasion that doesn't mean that they would have preferred to bring the whole ac a crashing down if five thousand dollars a were declared unconstitutional in that respect i think it's a lot like cilia law there in contrast to here you had actual evidence that congress wanted this the c f p be directed to be independent of the president and that was there in here which at the hypothesis there was evidence but the court made the judgment there that the congress would not have preferred to see the entire c f p be come crashing down and that of independents were eliminated and i think that same kind of reasoning applies very strongly here thank you buy insurance under this mandate the other provisions such as you know if you don't have to worry about preexisting conditions work all right why isn't that i'm sorry justice ali challenge that then hypothetical definitely test the limits of our objection to standing through and severability and and i think it would be hard to maintain that position in the face of a statute like that but what i will say your honor is this that what it does point up i think is that if the court is going to validate the theory of standing for an severability for the st time that it ought not to do so combined with a presumption of in severability at the standing stage because even if there is a situation like the one your honour's hypothetical describes are going to be very rare most of the time is the plurality opinion and a p c acknowledge severability will be the outcome and so if one presumes an severability and even in cases like this one without and severability clause then then i think that is as general mongan identified an open invitation to advisory opinions because you're going to grandstanding on the basis of the injury caused by provision b hold provision a unconstitutional and then say but in several and therefore the challenger doesn't get any relief and so i think that's the problem so i do think if the court really thinks that standing for an severability is a valid theory of establishing article three injury difficulty of trying to identify anything that was thought by the majority of congress other than what it says and a lot a lot of people a lot of members and two thousand and seventeen may well have thought that eliminating the penalty or the tax would not cause any harm and the whole aca to continue to function well without it but others who voted for it may have done so precisely because they wanted the whole thing to fall so i don't know what we can make of what was done in two thousand and seventeen along the lines that you've said so your honor i think that question points up the wisdom of the analysis in the a p c plurality to focus on objective indications  statutory text and context and beyond that i would say i don't think it would be an appropriate thing for the court to do to assume that there were members of congress who actually acting in violation of their oath to uphold the constitution by voting for a provision they knew to be unconstitutional in the hope it would bring the law down i just don't think that's a premise the court ought to indulge in any case and certainly not in this one when applying the objective factors what we know is that congress zeroed out the tax penalty which is a very strong textual signal that congress did not think that five thousand a sub a heated debate was necessary to play any significant role in maintaining these markets and  out the tax at the two thousand and seventeen congress his choice was just ciro out the tax correct yes that's manifest on the record here are the there there were efforts to repeal the entire a ca those efforts failed declaring the individual mandate unconstitutional if one sees it as a command the two thousand and seventeen congress has already told us that it doesn't want the rest of the act to pull correct that's  certainly our position your honor and that and it just would be utterly inconsistent with everything congress had before it with the judgment congress made and and with the wide announcement of the public that this amendment effectively repealed the mandate council there's an intuitive feeling that if the individual mandate is struck down with respect to standing in the state that they would have less reporting cost because or or rest in rowley's in their medicaid and chips program that's their argument about standing correct that's the evidence that that true or fault but i thought many of the brief show that that that had it was a faulty premise for other reasons do you agree with that you know i mean there's definitely no evidence general mongan went through that that's correct it was summary judgment and under lou one they had a burden they didn't meet it but apart from that basically their argument i think boils down to what they claim is common sense which is you know look people are going to read this mandate and they're going to enroll and and that in medicaid to satisfy it but you know i really think it's the opposite of common sense i mean the theory here is there were people out there who weren't enrolled in medicaid before when the mandate was accompanied by a tax consequence and therefore subjecting themselves to tax consequences congress amend it get rid of the tax consequence and those people say oh well congress got rid of tax consequences but look there still seems to be a mandate so i'm going to go enroll in medicaid now view which is that the individual mandate was the key to everything some relics of that in the law and i'm pointing to specifically and what the plaintiffs in this case sometimes call the inseparability provision which is a find basically that the mandate was essential to creating a fat health insurance market and i guess i'm wondering what do we do about that the fact that the us i'm doing still exists in the lot of us that constrain us in any way c three hundred g g shall be deemed inseparable those are the insurance protection revisions we'd have to make an implied repeal argument i think would have a strong one but we don't need to make that because the finding is not an operative provision of law it's just a finding and i think what key is that what it expresses is the two thousand and ten congress's view about the state of affairs that existed in two thousand and ten as a technical matter the provision is addressing section five thousand a it was as it was originally enact two thousand and ten that is the insurance the the mandate to purchase insurance backed by the tax now the argument my friends of the other side are making is that the two thousand and seventeen congress must have continued to agree with that finding because didn't repeal the finding but the two thousand and seventeen congress couldn't possibly have agreed that a requirement backed by a tax consequence was essential to in effect the market because the two thousand and seventeen congress eliminated the tax consequence and so i think that's very correct textual proof but to two thousand and seventeen congress to not share the view of the two thousand and ten congress expressed in the finding and then it comes down to the question of well whether whether you're going to strike this entire law down because the congress didn't go back and clean up that finding but there was no need to clean up that fining because as i said it's not an operative provision of law and it expresses a predictive judgment about the circumstances that existed in two thousand and ten and what the two thousand and ten congress thought would be necessary to create the market in texturally of course the finding talked about the requirement being essential to creating the market and by two thousand and seventeen the market had been created it was up and running c b all time c b o told congress you continue to run in a perfectly reasonable taxing authority because it produced revenue at least some that seems to have withered away and we're left with the commerce clause the necessary improper clause which the court  or closed last time around can you help me with that story i think it might help from you know walk through how we see this you are the congress started with the court's definitive construction of the lawn n f i b the court presumes that congress takes this course to finish construction is a given unless it clearly indicates a desire to change and we don't think it did that and so it starts from the premise that this is a lawful choice it was a lawful choice between obtaining maintaining insurance or paying the tax prescribe and subsection c and congress i don't think there's any doubt that congress was acting within its powers when it amended subsection c to reduce the tax to zero you can either think of that is inherent in the tax power necessary proper to it but it has to have the ability to take that step and so what remains is a statute that isn't operative and doesn't have any consequences for anyone so it's affectively like a statute that's been repealed and that's i think why so many in congress and the president described it as effectively as a repeal now larger than let's let's just put that aside for the moment ok and if we're focusing on the merits and assume the mandate is still something it's on the books because it's an operative provision at this point that it really doesn't have any more need for an enumerated power than when congress acts of hortatory statute i understand the premise here on this question as to disagree with that i think to the extent the court thinks an  seems difficult to justify under the taxing clause for the simple reason that it does not raise revenue among others so it's hard to call it a tax now and so i think you are just indicating can't just find the commerce clause because five justice exists now congress is maintaining the structure that existed before the zeroing out of the tax in two thousand and seventeen such that should congress decide in the future that it needs to reimpose a tax that it doesn't need to engage a wholesale reworking of the law can just step back in and change the number again and that respect it's not entirely different not the same i'm not saying it's the same it's not entirely different from tax law the congress and acts where the tax is suspended for a severability i tend to agree with you on it is a very straightforward case for several billet under our precedents meaning that we would exercise the mandate and leave the rest of the act in place reading are several billing proce favor of that result but i do think that relevant the relevant point of inquiry was what did the two thousand and seventeen congress think and i do think with respect what with the two thousand and seventeen congress have preferred in the language of syria law and c opinion and i think that the answer the the objective answer to that is quite clear that if the very same congress had zeroed out the tax and therefore removed any economic  incentive any economic suasion to get insurance couldn't possibly have thought that the provision was continued to be essential to the operation of the overall system thank you particular way and order to avoid a constitutional question when will congress be free to come back and say no no no that is what we meant and that case for example we didn't want to rely on the commerce power in other words why would  but i but i do think the presumption applies either way once this court is definitively construed a statute that is what the statute means and the court assumes that congress takes that meaning as a given and that and can rely on that construction by the court wanted to manage the statute and absent clear evidence that congress wanted to depart from the course definitive construction the core of the presumption is that the definitive construction stays in place and i do think that that has to be the case here because the only way to make sense of what congress was doing and what as i said everybody involved in this process said congress was doing was that they assumed that the choice of creating structure that was the definitive construction of the act after n f i b remained and that by zeroing out the tax they relieved any perceived need by anyone to purchase insurance if they didn't want it that's what everybody involved in this process said they were doing and we say that  do think that the statements by the legislature by the legislate or is in the present everyone else i know that that's legislative history in a sense but i do think there is wide agreement that those kinds of statements can be looked to  as evidence of what of the meaning that a provision is capable of bearing the mix clearly capable of bearing the meaning that we have identified and it seems like the only explanation for what congress did here is that they assume that that was its meaning if they had soon the opposite and wanted to impose a command i presume they would have somebody would have said that and everybody said the opposite and of course they  has been the law of the land for ten years the health care sector has reshaped itself in reliance on the law tens of millions of americans rely on it for health insurance that they previously couldn't afford millions more rely on the x other protections and benefits to assume that congress put all of that at risk when it amended the law in two thousand and seventeen is to attribute to congress or recklessness that is both without foundation in reality and jurisprudential inappropriate in view of all that isn't transpired in the past decade the litigation before this court the battles in congress the profound changes in our health care system only an extraordinarily compelling reason could justify judicial invalidation of this law at this late date respondents arguments in this case are anything but it should be rejected thank you thank you counsel general hawke and thank you mister chief justice and may have please the court this case should be resolved on the basis of three operative provisions that appear in the us code today the st is the individual mandate which is a command to the american people to purchase health insurance that the federal government deems suitable the  is a penalty provision that ensures that the mandate raises no revenue for the federal government the rd is a legislative finding in the shrine in the text of the law itself declaring the mandate essential to the operation of the the mandate as it exists today is unconstitutional it is a naked command to purchase health insurance and as such it falls outside of congress's a numerated powers and the legislative findings declaring the mandate essential require this court to conclude as did the district court below and the joint to send in and if i be that the mandate is in several from the remainder of the law and asking the court to hold otherwise petitioners are really asking this court to ignore statutory provisions in the us code petitioners instead prefer to hypothesize about what various legislators might have been thinking when they voted to eliminate the penalty provision yet retain the mandate and the legislative findings but that's just an argument that this court should set aside the text of the law in favor of non textual considerations that gets things exactly backwards as this court has confirmed time and again in recent years there is no basis to ignore the words that congress and acted and that remain operative today the proper course is to take congress at its word and declare the mandate unconstitutional and in several from the remainder of the ac a general hawkins on the severance question i think it's hard for you to argue that congress intended the entire act to fall if the mandate were struck down when the same congress had lowered the penalty to zero and did not even try to repeal the rest of the act i think frankly that they wanted the court to do that but that's not our job well mister chief justice i would respectfully submit that it is this court's job to follow the text of the law as written and i think it's critical that in two thousand and seventeen congress could have exercised the legislative findings in eighteen thousand and ninety one but it shows not to do so it could have exercised i mean i i certainly agree with you about our job in interpretating the statute but under the severability question we ask ourselves whether congress would want the rest of the law to survive if an unconstitutional provision were severed and here congress left the rest of the law intact when it lowered the penalty to zero that seems to be compelling evidence on the question i don't think so m justice i think what that establishes or at least one reasonable reading of what happened is that congress wanted to give the american people a tax cut and it went through lots of provisions of the internal revenue code cutting taxes here and there and one place it found to give the people a tax cut was in five thousand a c but it wanted to keep that mandate in place because the mandate would still drive people to acquire insurance and indeed it would have been quite reasonable for congress to conclude that simply having a mandate will lead people to sign up for health insurance as originally enacted the affordable care act included groups of people who are subject to the mandate but exempt from the penalty including the very poor and members of indian tribes and i think that's an indication that congress believe that simply ordering people to do something would get them to do it notwithstanding any penalty that may be attached general you talk about the  findings in the legislation and treat them as if they were in severability clause but it doesn't look like any severability clause anywhere else in the rest of the u s code to me well your honor there is certainly no magic words requirement for a sever though the clause already in severability clause what we see in eighteen thousand and ninety one is a repeated emphasis by congress that the mandate is essential to what they were seeking to accomplish this is not some fleeting referencing in one provision in subsections h i n j we see over and over again i just counsel justice thomas thank you mister chief justice determine exactly what the threat is of an action against you could you comment on that a bit and just give us an understanding of what your injury is sure justice thomas so we've offered seven different bases to conclude that the standing requirement of article three is satisfied i would submit that the easiest path to confirm standing is through the injury that the states have suffered in particularly the c b o confirmed in twenty million eighty two thousand and seventeen that simply requiring people to sign up for health insurance would lead people to do so and it's reasonably likely based on that that people will sign up for medicaid who otherwise would not have done so because of the command to do so now general mongan suggested that we not put on evidence of that and i respectfully disagree we've put on the example page ninety one dollars of the joint appendix which is the wisconsin affidavit now we would submit that under department of commerce versus new york that is more than enough to conclude that there is a substantial likelihood of at least one person signing and so we submit that the proper course here is to conclude that at least one plaintiff has standing for any of the reasons we put forward and then to conclude that the mandate is unconstitutional and upon doing so we would submit that that's when or could have statements do this don't do that or do this and they are they do not have any in force might they do not have any effect world war one the kind statute by war bonds and environmental statute plant a tree a one of a one thousand statutes commemorating something beautiful cities day clean up the art i mean i can recall i believe dozens and dozens of statutes where congress says something where normally we would say it's crack and torrie are all those statutes suddenly open to challenge i mean are none of them if so you lose any chance in between which ones are and which ones aren't so justice breyer you asked whether they're open to challenge i guess i'd want to know what is the area on the merits if you have a merit claim and you suddenly say this is no good because people will do it they'll buy war bonds they will plant a tree at least one of them will clean up the front yard ok and thereby i don't know if you see the point to merit point so justice brier i guess i'd want to look at the particular statute we know from and if i be that the government cannot order people to enter commerce people who are not already in commerce and if another statute is like that then i think and if i be started to fill in the point you're missing the point on each of them there is some constitutional argument that if there were a penalty attached it would be unconstitutional they take the penalty out from all my examples now no penalty and you you say that they are nonetheless unconstitutional for whatever reason you have so i think there will be an awful lot of language in an awful lot of statute it will suddenly be the subject of court constitutional challenge justice pryor we don't dispute that inherent in the nature of sovereignty is the power for the government to speak and so we don't challenge the idea of truly ho statements or congress giving suggestions or recommendations and if those statutes could be read that way then that might change my answer but what we have here and this is i think the critical difference it is not some suggestion not some hortatory statement it is the law of the united states of america today that you have to purchase health insurance and not just any health insurance health insurance that the federal government has decided would be best for you and that is certainly subject to challenge costs because you are required to calculate eligibility based on modified adjusted income what would happen if you didn't do that well we don't know for certain because we haven't tried but i believe the federal government could bring some action against us or somebody who should be eligible for medicaid under the ac a but a but isn't because of the way we've done the regulations i suppose would be connection with a failure to comply with the magi requirements of course there are penalties that states can suffer in connection with i r s reporting and other things like that ok as to the reporting  which this court has suggested is a tax for purposes of the anti injunction act so how could that theory standing survive the limitations  and twenty instructions which were released recently say that the states have to provide this information to the federal government about how they are covering as employers their employees and that reporting requirement itself inflicts on pocketbook injury on the states those forms don't produce themselves and our theory is that that pocketbook injury itself is enough to to satisfy article three i don't think that poses ai problem and indeed those injuries as the th circuit correctly held flow from the individual mandate itself and are traceable back to the mandate over port predicted that only a small number of people would do that the exact opposite of what it said in two thousand and nine because of a willingness to comply with the law but you have to take it a step further you have to prove that those stats small number would include people who didn't vote for medicaid and didn't enbrel for chips when it was a legal requirement would say there's only a small number of people who would do it that small number of people have to include medicaid and schip recipients to affect us the state at all and they would once the that case as well we were talking about a very small number of people who would unlawfully refuse to respond to the census if it included a citizenship question and the standing theory in that case was premised on assumptions about people breaking the law our theory in this case at least in part predicated on assumptions about people following the law the power line is that your theory assumes that people are going to pay a tax and break the law by not buying insurance but they wouldn't do it when the taxes here i'm that that makes less sense health insurance under the common core because they could all only be asked to bilk a choice under the tax clause now the individual plaintiffs here still believe that there is a command contrary to what an f i b said that they must buy health insurance what's your only remedy would be to say that provisions unconstitutional under the commerce cla already says it's all constitutional we can say it's unconstitutional now but you're arguing that somehow acing it a nd time with convince congress that they could command you to do b that we couldn't to read the text of the law the way your clients want us to because it would be unconstitutional so it's just a sort of my or in three a of the chief justice's opinion and if i be that that part of the opinion notes that the best reading of the individual mandate is as a command to purchase health insurance and then subsequent parts three b and three see the chief justice explained that an alternative reading was fairly possible that's what's missing today there is no fairly permissible alternative reading of the law and that leaves us with the conclusion in three a of the chief justices opinion that the mandate is best read as a command to purchase health insurance and that is unconstitutional and the text of the law says that the remainder of the ca cannot work without that individual mandate evidence that that has to be the starting point since then there has been the change this change and and and in this chance for congress reduces the penalty to zero  so how does it make sense to say that what was not unconstitutional commands before has become an unconstitutional commands now given the far bussard degree of coercive force well justice kagan i'd like to start with the premise of your question about the holding busy of n f i b that holding is an alternative reading of the statute a shave ings construction predicated on the fact that at the time the individual time i mean so however it was that it was four plus a lot and what exactly that one set holding up the court was that the a c a was not an unconstitutional command and and we would submit this court is not bound by that we held in and i b m which has you know which i don't think you can dispute but let me go on so five thousand a he says that a class of people in these are mostly poor people who were subject to the mandate but have those people are subject to the mandate but have never had to pay anything to do you think that in and then fight me what we really should have concluded was that those people were subject to a command whereas everyone else had a lawful choice so i think that those people are very poor and members of indian tribes i think that if at any point they had brought an as applied challenge i think they would have been in justice's opinion n f i b indicating that the mandate is best read as a command now to some people to many people a savings construction was available at the time but in two thousand and seventeen congress effectively took these subsection the exemptions and expanded them to everybody and the result is that there is no tax savings construction now available and we're just left with a command and justice course which while i'd like to pick up authority is still in play it's just the congress has chosen the senate is zero and once to the flexibility of retaining that provision in law because it might choose later to increase the tax again and what do you what do you say to that response i would say two things justice gorsuch number one this cannot be a tax because it does not raise revenue for the government and indeed somehow save that that would be giving congress a police power everything is potentially a tax and if congress could justify any legislation on the grounds that well maybe one day we'll impose a tax there would be no functional limit on article one power let me a turn to the remedial question here and if you could address it with respect to the individual plants they've asked for declaratory and injunctive relief i guess i'm a little unclear who exactly they want me to enjoy and what exactly they want me to enjoy in them from doing so the the declaration which was count want to which the district court has entered partial final judgment was a declaration the mandate is unconstitutional and inseparable from the remainder of the act the defendants included the united states h h s the i r s and their respective commissioners and so the judgment would be a declaration that the preexisting remedial jurisdiction we normally require some proof that one can remedy a plaintiff's injury more concretely than just a mere declaratory judgment well here i think they have to show that there would be an injunction that would be available and this is essentially an anticipatory action so two things justice gorsuch number one the united states in district court insisted that an injunction would not be necessary and that it would treat the declaration as an injunction and we took them at their word nd if that's not good enough count five in our complaint is still pending in district court and that is our request for injunctive relief and that that's still a live issue before the district court and we can pursue that remedy if necessary if you can't just as cavanaugh good morning general hawkins assume for purposes of my questions that there is standing just assume that on the merits of the mandate before we get to severability i want to follow up briefly on justice briar's questions because my understanding might be a little different from his about the existence of other laws i think when i asked general or is that right i think it is justice kavanagh i can't think of anything and it would make sense that that were correct because the affordable care act of course was an unprecedented statute i believe that congress had never tried to do before w i'm using that term mandate i understand the arguments from the other side about that term but the community is currently structured can't be justified under the commerce or taxing are necessary and proper clause we get to severability and looking at or sever billing precedence it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place the provisions regarding preexisting conditions and the rest so the question to you obviously is how do you get around those presidents on severability which seem on point here just as kavanagh i get around them by relying on the text of very clear and we did indicate what they look like in a p c and we cited an example of what they look like and you know congress knows how to write and severability clause and that is not the language that they chose here so i agree with you about focusing on the taxed very much agree with that but i just don't trouble seeing that as the equivalent of in severability clause just as kavanagh we would respectfully submit that that would elevate form over substance in some part age we see the mandate as essential to the larger regulation of economic activity subsection i it's essential to creating effective health insurance markets and the same thing again in subsection j this is congress saying over and over again that the mandate is essential to the operation of the law and i don't believe there's any serious argument that congress would have acted the ca in two thousand and ten but for the individual mandate or without the individual mandate to acquire health insurance and they left in place the finding saying that that requirement is essential and it's worth don't you think in two thousand and seventeen if you read congress as having wanted to preserve protection for  coverage for people with preexisting conditions because it sure seems that way from the record in the tax well your honor we would submit that the best approach is to just look at what's in the united states code rather than get into the game of what different legislators might have been thinking and saying in speeches and all that and indeed congress certainly could have excise these findings we've seen congress amend legislative findings before in cases like lopez where congress all hot and i want to go back to justice or the chess questions about standing for the individual places so let's say that we agree with you that the mandate by making them feel legal compulsion to purchase insurance has caused them a pocketbook injury why is that traceable to the defendants that the individuals have actually been here i mean you can see how it's caused by their traceable to the mandate itself but how is it traceable if say to the i well justice bear we have sued five defendants including the united states and this court has applied a longstanding presumption that the federal government acts in good faith and by suing the five defendants  we have sued here i think that's the best way of ensuring that the individual plaintiffs injuries from the individual mandate and the other parts of the a ca that interact with the individual mandate will be fully remedied united states's law that the individual plaintiffs have to acquire health insurance that the united states thinks is good for them let me switch gears a minute had a state standing in confusion or i mean it's my confusion based on different positions taken in the breeze about these ninety five b and the statements so the house at page thirty one of its briefs that is that the states would have the issue them regardless whether the mandate is intact in the statute or not the states point to the costs of producing these these farms and mailing them out as part of what's created their pocketbook injury was right so they are correct just to spare that six thousand and fifty six are independently on the books but if this court were to apply the longstanding presumption that the federal government will operate in good faith and respect this court's judgments then it is reasonably likely that a declaration from this court that the mandate is on lawful would prompt the federal government to in any way reduce the administrative burden that that paperwork causes including going through and saying who had what kind of coverage during justice just a couple of points on standing the regular tory burden that is imposed today by the i r s forms is the most straightforward way to conclude that the state has suffered a pocketbook injury and in any event department of commerce versus new york confirms that the state suffer another pocketbook injury as a predictable consequence of ordering people to sign up for insurance nd on severability we submit that even if this court is disinclined to invalidate every provision of the a c a it should at a minimum agree with the that under the text of the law the mandate is in several from the three legged stool rd on practical effects i want to emphasize that we recognize the alliance interests at stake in this regulatory regime the district court has stated it partial final judgment if this court order agree with us that the a c s invalid that stay could be extended for an appropriate time to allow the states and political branches of the federal government an opportunity to accommodate those reliance interests as we saw this court do in actually dawns rather than what it may have intended to do when congress eliminated the shared responsibility payment it left banding what is now in the could command to obtain insurance and it left standing the finding that that mandate is essential to the operation of all the parts of the act those choices have legal consequences whether or not the members of congress who voted for the t c g a foresaw them that's how this court normally approaches interpret statutes and it's how this court should approach the a c a here a local court questions in general your theory of standing is that a person who's not actually injured by part of the law can challenge that part of the law and through that try to strike down other parts of the law that do challenge him or that to injure him i think that really expands standing dramatically i mean just in this act alone you're talking about almost a one thousand pages and you're letting somebody not be injured by the provision that he's challenging sort of roam around through those one thousand pages and pick out whichever ones he wants to us the plaintiffs here have an article three injury they want certain kinds of insurance company it's a common feature it's a common feature of standing that the result is people can't challenge provisions i mean it's an important doctrine is the the only reason we have the authority to interpret the constitution is because we have the responsibility of deciding actual cases and that's what standing filters out i agree with all of that mister chief justice the plaintiff here in this is  those two are distinct things the plaintiffs here want insurance plans that they cannot get that they used to have but for the a c a that's an article three hundred is an injury in fact in the real world and right now they want different kinds of insurance merits they have arguments about why those insurance reforms for the jand can't be enforced against them and their argument on the merits is that the provisions are tied as a matter of statutory interpretation to the mandate and the mandate is unconstitutional now that argument may be right or wrong on the on on the merits just on this but it doesn't have anything to do with standing as you say it's distinct from the standing inquiry they have an article three injury then we move to the merits of ability and i was trying to explain to the chief justice believing that doesn't open the floodgates is because it's just way or that the text of the statute which we know has to be the focus on a p c and to the law is going to provide the kind of evidence that  overcome the presumption of severability virtually always going to be true with provisions or some will it just doesn't happen to be true here given the unique wording of the statute a prior yes i'm going to the merits and i think i have a i do have a very different understanding than justice kavanagh but i thought i heard with and someone in the solicitor general office read through the entire united states code which must be quite a job and discovered that there is no crack at tory language in the code there is nothing in the code that says something like by war bonds or supplication or an entreaty a couple of reasons just as part of the st is that it says shall ye shall maintain minimum coverage not that you're encouraged to do so and the nd is that when the statue and adopting the same thing construction it's looking at all three provisions and saying it has this essential feature of raising revenue that's what allows us to think something that's more naturally construed as a command and read it as a tax all right so you had someone read through the entire united states code and you discovered that there is no practice tory language in that code that uses the word shall is that right just for i'm not aware of any an didn't say you weren't aware of any i might be have a misplaced idea but i remember when i used to work there we passed lots of things like national port week and all kinds of stuff that  let's have a celebration or the nation shall plant a tree etc but you have read through the u s code or someone in your office and has learned that there is no word shall in a practice tory phrase show us where i have read the entire united states i haven't either i tell you i haven't either but i think we have looked at this question and we all of the practive tory provisions to which anyone has pointed or all of which we are aware the the passage in n f i b but the exemption there are exemptions from the mandate for people with religious exemptions and prisoners and illegal aliens and i think really it's just a choice conferring provision as the other side says a choice she would had anyway entreaty or a supplication rather than threatening a punishment have you ever heard that you are used shall in respect to a supplication or an entreaty known as a square in my family when i feel like kids that they justice alito perhaps there's a difference between a supplication and attacks are you aware of any provisions in the code in which congress has purported to use its p what has the feature of this case that has a as strange aspect is the sea change that's occurred in the understanding of the wall of the individual mandate between our st affordable care act and today at the time of the st case there was strong reason to believe that the individual mandate was like a part in an airplane that was essential to keep the plane flying so that if that part was taken out the plane would crash but now the part has been taken out and the plane has not crash so if we were to decide this case the way you advocate how would we explain why the individual mandate in its present form is essential to the operation of the act i think a couple of things  i think and if the court had invalidated the mandate i think there's good reason to believe that the core would have and should have also invalidated with a guaranteed issue and community leading because that was the most natural way to lead to finding and if that was the most natural way to lead that finding its text for two thousand and seventeen it's still the most natural reading nothing about the text of twenty seven thousand changed congress did a very targeted thing two thousand and seventeen it said we don't want people to have to make this payment anymore if they don't want to get insurance and yes that was a less coercive and a sense as justice kagan pointed out more coercive and another which is now it's just and they could command and they didn't disturb the finding and i take the point on the other side that if you look at all these things from cvo report the statement of legislators that you can divine a in the collective consciousness of congress and the judgment that the finding is no longer correct but they didn't amend or alter the text of the act have been permissible correct yes i think we're not me finish counsel if congress had a t c g a provided that the shared responsibility payment would be zero in two say one thing just the same all which is i believe it would but i think all of that would have been evident before the court and then to be why you wouldn't need it as a tax because if you were sort of phasing it out it would look more like a penalty that you would glad what's the difference between that and a decision often made by congress that for certain number of years whatever  due from the people they're not going to collect we've had cases with that where we've i think we had a case just last year where congress was going to pay a bonus to  soldiers and suspended that bonus for three years and then reapplied it later what's the difference between that constitutionally if congress has the power constitutionally to delay to extinguish to restart why is this any different that at least two congresses have chosen to forgo the tax but another congress has the you will woman the revenue raising function it's not naturally written like a tax as the chief justice recognized that it would never net most naturally follow those as a tax was allowed it to be reasonably construed as a ta was the revenue raising function once you cut that out of the statute it no longer reads like any of those provisions that have suspended or deleted taxes it would be very differently if you set them side by side t  and i think that might be enough to get the states standing but again i want to emphasize the united states has not taken a position on that wasn't sure i understood your answer to the chief justice you know a lot of legislation now is in the is huge packages i mean even more than the a c a that that involve other side just to drive home just so we decide that it is i think the other side is saying that even if you had a statue with an expression severability provision and an obvious constitutional problem like racial discrimination so it was obvious that the statu going to just pick up where we left off there and understand from you your response to justice kagan and her concern and the concern about opening the floodgates here just force we just don't see the problem because it's going to be as i was trying to say you very hard to make out of seven in severability claim it's going to get you past the motion dismissed age which is why we just don't see people walking in and challenging single provisions of on the books x because they don't have something like the any other statute like this one so i think i understand it the the sort of reaction that we don't see this sort of theory very often but again i don't think that's a function more of a free standing the plaintiff here injured they want plans they can't wall justice pryor rightly points out the u s code has a lot of crack at tory language and it my understanding matches his on that point and to the extent  the mandatory language here might be different and unusual which was my question earlier i think his question suggests will want to construe this language as being similar to those  court and then a fine be said that the essential feature that allowed for the saving construction was that reserve and once congress has a limited that i think they cut out the basis for the saving construction and the word shall which is  was with respect to the mandate is currently structured you make a forceful argument that it's not justified under the commerce or taxing or necessary improper clauses at least as construed in a five day but then we go to severability and i understood which is reflection a longstanding understanding of how congress works and our respect for congress legislative role in article one and it also has a clear default role for fairly clear default rule against which congress can legislate congress knows how to write and in severability clause but this language is different from how that usually looks so i just want to be an opportunity to respond to that sure so everyone agrees that there's no magic words requirement and at that point  gets in there it's very hard to limit it to the triad it takes down the other pieces of the act so i take the point of cabin on that it's not written in the way one normally sees and some are willing to call but it speaks directly to the question that the insufferable some point it out but if in fact congress zero this out and made it no longer a tax they've argued that congress would have deliberately done something unconstitutional by grounding this language if in fact it had four system that and its commerce power do you think that it's indisputable that n f i b what render such an exercise of the commerce power unconstitutional and i'm asking barrett but even if it weren't yes i think it is clear from n f i b that if it is read as a command that is not permissible under the commerce clause and i don't even take any of the parties i don't take house or the house or california to be disagreeing with that they're just disagreeing on the statutory question of how best to read it and one quick point on that to finish my answer just haven't all shall but i think that that point is very difficult to make shall do the work it should that's just more work than avoidance can do that move would be open to the court in every case like lopez and morrison and you could say well it just says that you shouldn't bring on guns in the schools and you shouldn't commit to mass to compete with the court took those commands is what they were commands that people shall be unconstitutional as an exercise of the congress power as a person the taxing power that would be odd for us to construe the status congress saying well we're going to change the statute in a way that's going to render it constitutional or the provision in a way that w a constitution unconstitutional i think they have a fair point that if you were trying to define the collective consciousness of congress it may be that many or most of its members didn't understand the legal consequences of what he was doing because all they were doing was something more targeted and they weren't thinking about the broader provisions or the findings and the rest so i had it's fair to say that they didn't focus on this but i don't think it's fair justice barrett say that the court shouldn't apply the act  terms just because that would create a constitutional problem that's exactly what n f i b would say we said would be the case and that what congress did whatever it may have been thinking whatever it might is intended to do  about general thank you mister chief justice and you wrote in a five b quoting chief justice marshall the peculiar circumstances of the moment may render a measure more or less wise but cannot render it more or less constitutional subsection a requires every law abiding american to obtain health insurance unless they fall within one of three exemptions that broad mandate whatever its wisdom of practical importance exceeds congress's a numerated powers and the co as for what that defect means for the ac a congress left standing the answer it gave in an act in the cia and whatever one's view of the wisdom of that answer in retrospect the court should respect congress's answer here to the text of the  chief justice i had three points st if you read the text respondents way you have to attribute to the two thousand and seventeen congress an intent to impose the very command this court said would be unconstitutional the court should avoid that result if there's any other possible way to read the test and here there is an obvious alternative if you adhere to the choice construction the court gave to five thousand dollars a n f i b that just makes the statute an operative a choice between buying insurance or doing nothing at a somewhat unusual statute but it aligns with this court of the word hate of construction it's exactly how congress and the president understood the amendment and what they told their constituents they were doing it allows americans to freely choose whether to buy health insurance and i think i heard at least one of my friends acknowledge that on bad regime it would be a constitutional nd a a p t makes clear that there is a strong presumption in favor of severability that can only be that's before the court today because they address the significance of a different version a five thousand dollars a back by a multi one hundred dollars tax consequence in the initial creation of health care market congress they wrote out that tax long after the markets were created and after c b o told it that they would remain stable even if five thousand dollars a were repealed or made on enforceable tashkent structure that congress created when it and after that amendment confirming the presumption of severability because congress made five thousand a on enforceable and chose to leave every other provision in place and the remaining provisions aren't just capable of functioning independently they have been functioning perfectly well ever sent finally whatever your approach to severability it's common ground that any remedy should respect the separation of powers and should not invalidate any more of congress's work than is absolutely necessary and what is before the court today is an enormously consequential statute provide health insurance and other life saving benefits and protections to hundreds of millions of americans and there's no doubt that it's been controversial and in two thousand and seventeen congress debated congressional intent and that an order declaring that provision and only that provision unenforceable thank you thank you general the case is submitted