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SCOTUS Arguments King v. Burwell

SCOTUS arguments King v. Burwell

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0% found this document useful (0 votes)

31K views97 pages

SCOTUS Arguments King v. Burwell

SCOTUS arguments King v. Burwell

Uploaded by

Sahil Kapur

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

You are on page 1/ 97

Official - Subject to Final Review

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IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

DAVID KING, ET AL.,

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Petitioners

:
:

SYLVIA BURWELL,

SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

- - - - - - - - - - - - - - - - - x

No. 14-114.

Washington, D.C.

Wednesday, March 4, 2015

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The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:09 a.m.

APPEARANCES:

MICHAEL A. CARVIN, ESQ., Washington, D.C.; on behalf of

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Petitioners.
DONALD B. VERRILLI, ESQ., Solicitor General, Department

of Justice, Washington, D.C.; on behalf of

Respondents.

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Alderson Reporting Company

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C O N T E N T S

ORAL ARGUMENT OF

MICHAEL A. CARVIN, ESQ.

PAGE

On behalf of the Petitioners

ORAL ARGUMENT OF

DONALD B. VERRILLI, ESQ.

On behalf of the Respondents

REBUTTAL ARGUMENT OF

MICHAEL A. CARVIN, ESQ.

On behalf of the Petitioners

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P R O C E E D I N G S

(10:09 a.m.)

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CHIEF JUSTICE ROBERTS:

We'll hear argument

this morning in Case 14-114, King v. Burwell.

Mr. Carvin.

ORAL ARGUMENT OF MICHAEL A. CARVIN

ON BEHALF OF PETITIONERS

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MR. CARVIN:

Mr. Chief Justice, and may it

please the Court:

This is a straightforward case of statutory

construction where the plain language of the statute

dictates the result.

JUSTICE GINSBURG:

Mr. Carvin, will you

please back up, because before we get to a question of

statutory construction, as you know, each plaintiff, or

at least one plaintiff, has to have a concrete stake in

these questions.

questions.

They can't put them as ideological

And we have as -- four plaintiffs.

As to

two of them, there is a declaration stating "I am not

eligible for health insurance from the government," but

there's a question of whether they are veterans eligible

for coverage as veterans.

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MR. CARVIN:

Yes.

One of those is Mr. Hurst

who would have to, if -- I would refer you to Joint

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Appendix at PAGE 42, where this is the government's

recitation of facts where they make it clear that

Mr. Hurst would have to spend $750 of his own money as

a -- because of the IRS rule.

Mr. Hurst was a veteran for 10 months in

1970.

because if you've served such a short -- health

services.

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I -- I'll ask the

government if they agree that -MR. CARVIN:

And I should point out that the

government has never disputed this, and I'd also like --

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If you serve such a short -JUSTICE GINSBURG:

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He is not eligible for any veterans service

JUSTICE GINSBURG:

But the Court has an

obligation to look into it on its own.

MR. CARVIN:

That's true, but of course

there has been fact-finding by lower courts in an

adversarial system.

own --

I don't believe the Court does its

JUSTICE GINSBURG:

I don't think it was ever

brought up in the lower court that these -- these two

people were veterans.

MR. CARVIN:

If I could just make one

further point on this, Justice Ginsburg.

were technically eligible, which he is not, there is an

IRS Rule 26 C.F.R. 1.36B-2(c)(ii), which says --

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Even if he

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JUSTICE SCALIA:

MR. CARVIN:

Ah, yes.

With the usual clarity of the

IRS code, making clear that you are only disabled from

receiving subsidies if you have actually enrolled in a

veteran's health services and it's undisputed that --

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JUSTICE GINSBURG:

That's the government

that's --

MR. CARVIN:

JUSTICE GINSBURG:

-- Mr. Hurst did not.

-- that's deposition to.

And then there were the two women, I think one of them

was going to turn 65 in June, which would make her

Medicaid-eligible.

MR. CARVIN:

She will turn 65 in late June.

She's obviously subject to the individual mandate well

in advance of that.

would have to spend $1800 per year for health insurance

by virtue of the IRS --

By virtue of the IRS rule, she

JUSTICE GINSBURG:

MR. CARVIN:

JUSTICE GINSBURG:

Excuse me?

MR. CARVIN:

JUSTICE GINSBURG:

But you said she will

turn 65 in June.

Per year?

Late June, yes.

So that takes care of

2015.
MR. CARVIN:

No.

Right now she is obliged

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under the individual mandate to have insurance.

you have to have insurance for 9 months of the year and

so as of April 1st --

JUSTICE GINSBURG:

MR. CARVIN:

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You --

Then --

-- she will be subject to the

penalty which will be alleviated only by -JUSTICE GINSBURG:

Again, I'll ask the

government if they agree with you on that.

And then I think for the fourth plaintiff,

there's a question whether she would qualify for a

hardship -- hardship exemption from the individual

mandate even if she received the tax credit, in which

case the tax credits would be irrelevant.

MR. CARVIN:

That's true.

Again, I'll refer

you to the Joint Appendix at 41.

government's argument below.

a factual dispute about it because we had such clear

standing with respect --

JUSTICE GINSBURG:

MR. CARVIN:

JUSTICE GINSBURG:

We didn't want to get into

Yeah, but you have to --

-- to -But you would have to

establish the standing, prove the standing.

MR. CARVIN:

JUSTICE GINSBURG:

That was the

Well, as -If this gets beyond the

opening door.

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MR. CARVIN:

Fair enough, Your Honor, but --

but it's black-letter law that only one plaintiff needs

standing, and for the reasons I've already articulated,

both Plaintiff Hurst and Plaintiff Levy have.

JUSTICE GINSBURG:

Okay.

I don't want to

detain you on this any more but I will ask the

government what their position is on standing.

MR. CARVIN:

Returning to the merits, the only provision

Thank you.

in the Act which either authorizes or limits subsidies

says, in plain English, that the subsidies are only

available through an exchange established by the State

under Section 1311.

JUSTICE BREYER:

If you're going to

elaborate on that, I would appreciate your -- in your

elaboration, I've read that, and this statute is like

the tax code more than it's like the Constitution.

There are defined terms, and the words you just used

concern a defined term.

As I read the definition, there's a section,

Definitions, and it says, quote, The term "Exchange"

means, quote, an exchange established under 1311.

1311 says, An Exchange shall be a government agency,

et cetera, that is established by a State.

the definitions.

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And

Those are

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So then you look to 1321.

And 1321 says, if

a State does not set up that Exchange, then the Federal,

quote, secretary shall establish and operate such

Exchange.

So it says, "The Secretary is to establish

and operate such Exchange," the only kind of Exchange to

which the Act refers, which is an -- quote, "an Exchange

established by a State under 1311."

definition.

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So the statute tells the Secretary, set up

such Exchange, namely, a 1311 State Exchange.

MR. CARVIN:

JUSTICE BREYER:

Correct.

MR. CARVIN:

JUSTICE BREYER:
they're talking about.

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And there's nothing else in

this statute.

That's the

MR. CARVIN:

Correct.
So that's throughout what

So what's the problem?

As Your Honor just said, it

tells the Secretary to establish such Exchange.

JUSTICE BREYER:

MR. CARVIN:

Yes.

And what 36B turns on is

whether the State or the Secretary has established the

Exchange.

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JUSTICE BREYER:

No, it uses the same

terminology that it's used in -- 15 times in this

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statute, namely, the terminology in the definition is

"an Exchange established by a State."

MR. CARVIN:

JUSTICE BREYER:

MR. CARVIN:

Under -That's the phrase.

Well, under 1311, that is the

phrase.

section created some ambiguity as to whether HHS was

establishing a 1311 or 1321 Exchange, that is immaterial

because 36B does not say all 1311 Exchanges get

And if 1311 created some -- the definitional

subsidies, it says Exchanges established by the State

under Section 1311 --

JUSTICE KAGAN:

MR. CARVIN:

-- not established by HHS under

Section 1311 --

JUSTICE KAGAN:

MR. CARVIN:

Mr. Carvin.

-- so it eliminates any

potential ambiguity created by the definitional section.

JUSTICE KAGAN:

Can -- can I offer you a

sort of simple daily life kind of example which I think

is linguistically equivalent to what the sections here

say that Justice Breyer was talking about?

So I have three clerks, Mr. Carvin.

Their

names are Will and Elizabeth and Amanda.

first clerk, I say, Will, I'd like you to write me a

memo.

Okay?

So my

And I say, Elizabeth, I want you to edit Will's

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memo once he's done.

Will is too busy to write the memo, I want you to write

such memo.

And then I say, Amanda, listen, if

Now, my question is:

If Will is too busy to

write the memo and Amanda has to write such memo, should

Elizabeth edit the memo?

(Laughter.)

MR. CARVIN:

If you're going to create

moneys to Will for writing the memo and Amanda writes

the memo and you say, the money will go if Will writes

the memo, then under plain English and common sense, no,

when Amanda writes the memo --

JUSTICE KAGAN:

MR. CARVIN:

JUSTICE KAGAN:

Gosh --

-- but now --- you -- you run a

different shop than I do if that's the way --

(Laughter.)

JUSTICE KAGAN:

Because in my chambers, if

Elizabeth did not edit the memo, Elizabeth would not be

performing her function.

a substitute, and I've set up a substitute.

I've given -- I've given instructions:

write -- you edit Will's memo, but of course if Amanda

writes the memo, the instructions carry over.

knows what she's supposed to do.

In other words, there's a -And then

Elizabeth, you

Elizabeth

She's supposed to edit

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Amanda's memo, too.

MR. CARVIN:

And -- and in your chambers,

you're agnostic as to whether Will, Elizabeth or Amanda

writes it.

1311, Congress was not agnostic as to whether States or

HHS established the Exchange.

But the key point is here under Section

It's --

JUSTICE ALITO:

those clerks, I had the same clerks --

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Well, Mr. Carvin, if I had

(Laughter.)
JUSTICE ALITO:

-- and Amanda wrote the

memo, and I received it and I said, This is a great

memo, who wrote it?

by Will, because Amanda stepped into Will's shoes?

Would the answer be it was written

MR. CARVIN:

(Laughter.)

JUSTICE KAGAN:

MR. CARVIN:

That was my first answer.

He's good, Justice Alito.

Justice Kagan didn't accept it,

so I'm going to the second answer, which is you are

agnostic as between Will and Amanda, but this --

JUSTICE KAGAN:

MR. CARVIN:

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Ah, but that's --

But Congress was not agnostic

as between State and Federal Exchanges.

JUSTICE KAGAN:

Yes.

That's a very

important point, I think, because what you're saying is

that the answer to the question really does depend on

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context, and it depends on an understanding of the law

as a whole and whether they were agnostic.

that.

I agree with

So it's not the simple four or five words

because the four or five words in my example, it's

obvious that Elizabeth should edit the memo.

whole structure and context of the provision that

suggests whether those instructions carry over to the

substitute, isn't it?

MR. CARVIN:

It's the

We implore you to examine these

words in the context of the Act as a whole because our

argument becomes stronger for five reasons.

To respond to Justice Breyer's point, he

says such Exchange connotes that it's the same person

doing it.

But look at the provision on territorial

Exchanges.

It says, territories can establish such

Exchanges and then it says, "and shall be treated as a

State."

So -- so -JUSTICE BREYER:

Yes, it does.

But you say

connote.

a question of denotation.

means that the Federal government, the Secretary, is

establishing a thing for the State.

thing?

is defined as an Exchange established by the State.

No, it's not a question of connotation; it is

Now what does that mean?

And what is the

The thing that it is establishing for the State

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MR. CARVIN:

JUSTICE BREYER:

To -Now, that person from Mars,

who's literal, which I usually am not, but a literalist,

I think would have to read it that way.

if you're not a literalist, well, at least you could

read it that way.

But if you --

Now you want to go into the context -- if

you want to go into the context, at that point it seems

to me your argument really is weaker.

MR. CARVIN:

JUSTICE BREYER:

Well, two points.

The Exchanges fall apart,

nobody can buy anything on them.

arguments.

are no customers.

as long as they use just people from Virginia, but one

Maryland person comes -- you know all those arguments.

So how does the context support you?

You know the

You've read the briefs.

Nobody can -- there

Employers don't have to pay penalties

MR. CARVIN:

Well, again, under the

literalist or nonliteralist interpretation, saying that

HHS will establish such Exchange doesn't suggest that

the State has established such Exchange if there was --

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JUSTICE SOTOMAYOR:

But the State, if made

the -MR. CARVIN:

-- if there was ambiguity in

that regard -- just if I could finish my answer to

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Justice Breyer -- you look at a parallel provision where

they use precisely the same language, and they said,

"and shall be treated as a State," that language which

is notably omitted from 1321 --

JUSTICE BREYER:

MR. CARVIN:

Correct.

-- and it's a basic principle

of statutory construction that you interpret the same

phrases the same way.

how to create equivalence between non-State Exchanges

And it shows that Congress knew

and Exchanges if and when it wanted to.

Sorry, Justice Sotomayor.

JUSTICE SOTOMAYOR:

(Laughter.)

JUSTICE SOTOMAYOR:

Take a breath.

I'm -- I'm a little

concerned with how you envision this provision working.

You're saying that the HHS Exchange can't be for the

State so that it's established by the choice of the

State.

The choice the State had was establish your

own Exchange or let the Federal government establish it

for you.

you're saying, then we're going to read a statute as

intruding on the Federal-State relationship, because

then the States are going to be coerced into

establishing their own Exchanges.

That was the choice.

If we read it the way

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And you say, oh, no,

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they can't be coerced, but let's go back to what Justice

Breyer was talking about.

In those States that don't -- their citizens

don't receive subsidies, we're going to have the death

spiral that this system was created to avoid.

are obligated, insurers are obligated to make sure that

in their States, whether they're part of this program or

not, that they have guaranteed coverage, that 26 -- that

children are covered till they're 26, and that they base

States

their costs on community ratings.

that, then costs are going to rise on every insurance --

every insurance plan offered in the country in those 34

States, 3 or 6 of -- or 9 of your States will have

tightened their Medicaid eligibility requirements in

contravention of the Act, so they're taking money by

breaking their compacts.

their Medicaid money.

So if they have to do

They would have to lose all of

Tell me how that is not coercive in an

unconstitutional way?

unconstitutional way, in Bond just -- I think it was

last term, we said that that is a primary statutory

command; that we read a statute in a way where we don't

impinge on the basic Federal-State relationship.

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MR. CARVIN:

And if it is coercive in an

This Court has never suggested

outside the very unusual coercion context of the NFIB

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Medicaid that a funding condition somehow invades a

State police power.

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Obviously --

JUSTICE SOTOMAYOR:

Oh, we did it -- we said

it last year.

MR. CARVIN:

In an NF -- no, no.

In Bond,

there the Federal government was taking away a police

power.

saying you want billions of free Federal dollars.

That's hardly invading State sovereignty and it's the

kind of routine the funding condition that this Court

has upheld countless times.

Here, all the Federal government is doing is

JUSTICE KENNEDY:

Let me say that from the

standpoint of the dynamics of Federalism, it does seem

to me that there is something very powerful to the point

that if your argument is accepted, the States are being

told either create your own Exchange, or we'll send your

insurance market into a death spiral.

pay mandated taxes which will not get any credit

on -- on the subsidies.

sky-high, but this is not coercion.

under your argument, perhaps you will prevail in the

plain words of the statute, there's a serious

constitutional problem if we adopt your argument.

We'll have people

The cost of insurance will be

It seems to me that

MR. CARVIN:

One is the government's never made that

Two points, Justice Kennedy.

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argument.

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Number two, I'd like to think -JUSTICE KENNEDY:

Sometimes we think of

things the government doesn't.

(Laughter.)

MR. CARVIN:

Well, I certainly hope you do

in this case, but not -- not on this question.

What -- what I'm trying to, quite seriously, Justice

Kennedy, convey is if this was unconstitutional, then

the Medicaid statute that this Court approved in NFIB

would be unconstitutional.

JUSTICE SCALIA:

Mr. Carvin, where the --

what would the consequence of unconstitutionality be?

Very often you have an ambiguous provision, could be

interpreted one way or another way.

one way is unconstitutional, you interpret it the other

way.

MR. CARVIN:

JUSTICE SCALIA:

If interpreting it

Correct.
But do we have any case

which says that when there is a clear provision, if it

is unconstitutional, we can rewrite it?

MR. CARVIN:

JUSTICE SCALIA:

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And that -- and that -Is there any case we have

that says that?

MR. CARVIN:

No, Your Honor.

really my point, Justice Kennedy.

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And that was

Think about the

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consequences when -- of the Medicaid deal as being

coercive.

That has created a bizarre anomaly in the law; that if

people making less than the poverty line are not

available to any Federal funds to help them with health

insurance.

22 states have said no to the Medicaid deal.

JUSTICE KENNEDY:

I -- I fully understand

that, but I think the Court and the counsel for both

sides should confront the proposition that your argument

raises a serious constitutional question.

sure that the government would agree with that, but it

-- it is in the background of how we interpret this --

how we interpret this statute.

MR. CARVIN:

JUSTICE KENNEDY:

Now, I'm not

Your Honor -It may well be that you're

correct as to these words, and there's nothing we can

do.

I understand that.

JUSTICE SOTOMAYOR:

MR. CARVIN:

There are many --

A -- A, there's no savings

construction to echo Justice Scalia's point; but B, the

point I want to make on the straight-up

constitutionality is, if this is unconstitutional, then

all of the provisions in the U.S. Code that say to

States if you do something for No Child Left Behind, we

will --

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JUSTICE GINSBURG:

But this is -- this is

quite different.

JUSTICE KENNEDY:

In -- in South Carolina v.

Dole where -- where the matter of funding for the

highway, suppose Congress said, and if you don't build

the highways, you have to go 35 miles an hour all over

the State.

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We wouldn't allow that.

MR. CARVIN:

No.

Well, there, of course,

you would be interfering with a basic State prerogative

as to establish their limit, and they are -- the

condition is not related to that.

perfectly related to it.

JUSTICE GINSBURG:

MR. CARVIN:

Here the condition is

Mr. Carvin --

We want to create something new

JUSTICE GINSBURG:

Mr. Carvin, here's a --

you refer to the Medicaid example.

a grant-in-aid says to the State, here's the Federal

money and here's the conditions, take it or leave it.

That's one pattern.

flexible State.

you want it, and if you don't, there's a fallback.

There's the Federal program.

pattern.

can have a State implementation plan, but State, if you

That's a familiar --

But this pattern that we have says

You can -- you can have your program if

I mean, that's a typical

It's the pattern of the Clean Air Act.

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You

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don't get up your plan, there's a Federal implementation

plan.

if you take what the statute says you can have in 1321,

then you get these disastrous consequences.

I have never seen anything like this where it's

MR. CARVIN:

That's why this is much less

risky a deal for Congress.

from Medicaid as the dissenting opinion in NFIB pointed

out.

or leave it.

And what distinguishes it

In Medicaid, Congress is playing all in, take it

If they turn down the deal, then Medicaid

is completely thwarted.

subsidy deal, they still get the valuable benefits of an

Exchange and there's not a scintilla of --

Here, if they turn down the

JUSTICE GINSBURG:

What -- what are those

benefits?

What are the insurers that will sell on it?

What are the customers that can buy on it?

MR. CARVIN:

One is we know textually that they thought

Well, three points.

Exchanges without subsidies work, because again, they

have territorial Exchanges, but the government concedes

no subsidies.

JUSTICE KAGAN:

MR. CARVIN:

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That's not --

We have legislative history

which -JUSTICE KAGAN:

Mr. Carvin, that's not --

that's not what you said previously when you were here

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last time in this never-ending saga.

(Laughter.)

JUSTICE KAGAN:

You said the -- you said

without the subsidies driving demand within the

Exchanges, insurance companies would have absolutely no

reason to offer their products through Exchanges.

then you said the insurance Exchanges cannot operate as

intended by Congress absent the subsidies.

MR. CARVIN:

That is entirely true.

And

They

wouldn't have operated as intended because Congress

intended all 50 States to take this deal.

So eliminating --

JUSTICE SOTOMAYOR:

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all?

Obviously, they thought that some States wouldn't.

MR. CARVIN:

Well, they thought it was

possible and --

JUSTICE SOTOMAYOR:

MR. CARVIN:

JUSTICE SOTOMAYOR:

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So why create 1326 at

Very possible.

And then -Because they set up a

mechanism for that to happen.

MR. CARVIN:

And then they -- what happens?

You still get the Exchange.

where the entire Federal program is thwarted.

the benefits that were lauded.

JUSTICE SOTOMAYOR:

It's not like Medicaid

You get

But nobody -- no one's

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going to visit the program if there are no subsidies

because not enough people will buy the programs to stay

in the Exchanges.

MR. CARVIN:

That is demonstrably untrue and

not reflected anywhere in the legislative history.

legislative history quite clearly contradicts that.

Many senators got up and said there are very valuable

benefits to the Exchange, one-stop shopping, Amazon, as

President Obama has said.

The

The government came in the

last case and told you these two things operate quite

independently.

subsidies.

legislative history suggesting that without subsidies,

there will be a death spiral.

We don't need Exchange without

In contrast, there's not a scintilla of

JUSTICE SOTOMAYOR:

Not a word.
Wait a minute.

That was

the whole purpose that drove this bill because States

had experimented with this, and those that didn't have

subsidies or other -- other provisions of the Act didn't

survive.

MR. CARVIN:

JUSTICE SOTOMAYOR:

They didn't have -You said it yourself in

the prior case.

MR. CARVIN:

the individual mandate.

the individual mandate is necessary to affect death

No.

The prior case was about

The government came in and said

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spirals.

anywhere else, suggested that subsidies were available.

Will subsidies reduce the number of people available on

the individual --

No one, in the findings in Congress or

JUSTICE SOTOMAYOR:

My problem -- my problem

is that -- the reverse.

how -- hiding, borrowing the phrase of one of my

colleagues, a -- a -- a huge thing in a mousetrap.

Okay?

You're talking about Congress,

Because do you really believe that States fully

understood that they were not going to get -- their

citizens were not going to get subsidies if they let the

Federal government?

hearings?

What senator said that during the

MR. CARVIN:

The same amount of senators who

said that subsidies were available on HHS Exchanges,

which is none.

legislative history just as they didn't deal with

Medicaid because the statute was quite clear.

They didn't deal with it in the

Let's talk about it in context again,

Justice Sotomayor.

in the Act establishing any limit on the subsidies is

found in 36B.

you'd expect to find it.

that limits subsidies to purchases made on Exchange.

The context is the only provisions

So it's not a mouse hole.

It's the place

It's the only place in the Act

JUSTICE GINSBURG:

But it's a --

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JUSTICE KAGAN:

I don't know think that's

quite right, Mr. Carvin.

CHIEF JUSTICE ROBERTS:

JUSTICE GINSBURG:

It's a tax code provision

that's an implementation provision.

you compute the individual amount.

MR. CARVIN:

JUSTICE GINSBURG:

9
10

It tells you how

It -It -- it's not in the

body of the legislation where you would expect to find

this.

11
12

Justice Ginsburg.

MR. CARVIN:

No.

Your Honor, if that's

true --

JUSTICE GINSBURG:

MR. CARVIN:

JUSTICE GINSBURG:

And if it --

Sorry.

Please.

What Justice Kagan just

read to you, you had the idea that the subsidies were

essential --

MR. CARVIN:

JUSTICE GINSBURG:

20
21

work.

No.
-- to have the thing

That's what you told us last time.

MR. CARVIN:

What I told you was it wouldn't

work as expected, and that's because they thought this

deal would work just like the Medicaid deal where all 50

States would say yes, so you would have both of

congressional purposes.

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JUSTICE GINSBURG:

Then why in the world

would they set up this whole extra thing if they didn't

think anybody was going to take it?

MR. CARVIN:

Well, that -- that was my

response to Justice Sotomayor.

completely unsupported empirical observation made post

hoc by amicus.

legislative history.

refutes it.

That -- that is

There's no reflection of that in the

Indeed, the legislative history

CHIEF JUSTICE ROBERTS:

heard talk about this other case.

other case?

(Laughter.)

CHIEF JUSTICE ROBERTS:

MR. CARVIN:

(Laughter.)

MR. CARVIN:

I'm really glad Your Honor said

And -- and if I could return to

context because I think --

JUSTICE KAGAN:
Carvin.

23
24
25

So maybe it makes

that.

Did you win that

sense that you have a different story today?

16
17

Mr. Carvin, we've

Please.
MR. CARVIN:

Kagan.

I mean -- I'm sorry, Mr.

Just very briefly, Justice

Very much appreciate it.

To -- to respond, we've already talked about

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context.

It says in the strongest possible terms we want States

to run these Exchanges.

subsidies, then, of course, there is absolutely no

incentive for States to do it, and you have

fundamentally undermined that distinct statutory

purpose.

accomplishes both of its goals.

plus State-run Exchanges.

Section 1311 is a key part of this context.

If you give unconditional

Whereas if you condition subsidies, Congress

Widespread subsidies,

In terms of terms of art, again, there is

language in the statute which says

"Exchanges," "Exchanges under the Act."

naturally encompass both HHS Exchanges and

State-established Exchanges.

Those phrases

And, yet, the Solicitor General is coming

here to tell you that a rational, English-speaking

person intending to convey subsidies available on HHS

Exchanges use the phrase "Exchanges established by the

State."

He cannot provide to you any rational reason

why somebody trying to convey the former would use the

latter formulation.

CHIEF JUSTICE ROBERTS:

Mr. Carvin, why

don't you take an extra ten minutes and maybe we'll give

you a little bit more of a chance to talk.

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MR. CARVIN:

JUSTICE KAGAN:

(Laughter.)

MR. CARVIN:

Fine.

Well, then, I'll ask a

question.

Okay.

Well, if you're going to ruin

my ten minutes.
JUSTICE KAGAN:

No.

I mean, let's go back

to this question of where -- where Congress put this

thing because putting aside constitutional issues, I

mean, there's at least a presumption, as we interpret

statutes, that Congress does not mean to impose heavy

burdens and Draconian choices on States unless it says

so awfully clearly.

And here -- and this goes back to what

Justice Ginsburg was saying -- there's really nothing

clear about this.

for anybody to even notice this language.

I mean, this took a year and a half

And as Justice Ginsburg said, it's -- it's

put in not in the place that you would expect it to be

put in, which is where it says to the -- the States,

here is the choice you have.

the statute defines who a qualified individual is or who

is entitled to get the subsidies.

in this technical formula that's directed to the

Department of the Treasury saying how much the amount of

It's not even put in where

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the subsidy should be.

And that seems to be -- it both makes no

sense from Congress's point of view, and in terms of our

own point of view, in terms of interpreting statutes,

that's not the clarity with which we require the

government to speak when it's upsetting Federal-State

relations like this.

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MR. CARVIN:

I must respectfully disagree

for three reasons, Justice Kagan.

In the first place,

of course, you -- where else would you expect a tax

credit except in the tax code?

You wouldn't put it in 42 U.S.C., which has nothing to

do with taxes.

limitations placed.

It's the only place where Exchange is

You have three audiences here, not just

States.

entitled to.

these subsidies are available.

you have to put it in 36B.

That's where this was.

You have to tell taxpayers what they're

You have to tell insurance companies when
And you have States.

So the argument, I guess, the government is

making is what you should have done is put half of it in

36B and half it in 1321 which, of course, would have

confused everybody.

Then you'd go to 1321 and say, when we said Exchanges in

36B, we meant established by the State.

36B would say, Exchanges, period.

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JUSTICE ALITO:

Mr. Carvin, if I were a --

if I were a State official and I was trying to decide

whether my State should establish an Exchange, and I

wanted to know whether individuals who enrolled in a

plan on my possible State-established Exchange would get

a credit, where would I look?

MR. CARVIN:

Exactly.

The basic thesis here

is these Exchanges don't work without subsidies.

You've read 1321.

Now you're going to go

find out where the subsidies are.

hypothesizing State --

JUSTICE KAGAN:

You've

That's 36B.

They're

The -- I think not,

Mr. Carvin.

find out about my choices is in the provision of the

statute that talks about my choices.

I mean, I think the place I would look to

I think the last place I would look is a

provision of the statute that talks about -- what is

it -- coverage months for purposes of this subsection,

which, by the way, isn't even the right subsection, but

whatever.

is in where it talks about what a coverage month is?

That -- that's where I would look, is in --

MR. CARVIN:

But -- but, Your Honor, I've

already described the difficulties of putting it -- part

of it in 1321, right?

this bizarre tax credit provision which is only half

Because then you would create

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true, and you wouldn't tell taxpayers and insurance

companies.

So I believe that's the complete answer.

But the other practical point I'd like to

make is they had three years to implement this.

one thought the States were going to have to make a

decision overnight.

State would have been fully informed of the consequences

because presumably they've read 36B, and then they would

make an intelligent decision well in advance of the

And no

If the IRS had done its job, every

two -- 2013 deadline.

So there's a bizarre notion that States were

somehow unable to read a statute or to -- or to read a

regulation is simply --

JUSTICE BREYER:

I really want -- I really

want to hear what you're going to say in your 5 to

10 minutes.

be interested in your responses to the government's

brief, that if you read the words "established by the

State" without reference to the technical definition as

you wish, this isn't just about the taxes; it means

employers in Virginia don't have to make policy, don't

have to -- don't have to give policies, but if they have

one Maryland worker they do; it means that they never

can tighten up their Medicaid regulations, never, in 34

States -- but, of course, in the others they can; it

And if you want, only if you want, I would

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means that there's no qualified person ever to buy

anything on a -- an Exchange established by the

Secretary for the State, and they have two or three

other anomalies that have nothing to do with taxes, all

of which supports their argument that you have to read

this phrase technically according to the definition.

Now, that's their basic point.

to summarize it.

you to have 5 or 10 minutes to answer it.

10
11

Do it as you wish you.

MR. CARVIN:

Thank you.

I've tried

I just want

And -- and -- and

the first point is there are no anomalies.

JUSTICE SCALIA:

I'm going to clock that,

see if -- see if you get 5 minutes.

MR. CARVIN:

There are no -- the first point

I'd like to make is there are no anomalies stemming from

our interpretation of 36B.

that.

individuals point about how there would be nobody on HHS

Exchanges.

up here and tell you that if we prevail in our

interpretation of 36B, they would be obliged by the

logic of that opinion to empty out HHS Exchanges.

all agree that there's no connection between 36B and the

qualified individual.

The government agrees with

Their biggest anomaly is this qualified

The Solicitor General is not going to stand

So we

That's point one.

Point two is, if you want anomalies, their

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interpretation of the statute requires 34 States today

to lose all Medicaid coverage.

the provisions on 64a through 66a of the government's

brief, there are various requirements that the State, on

pain of losing all of its Medicaid funds, must

coordinate between the State-established Exchange, the

State agency for CHIP, and the State agency for Medicaid

in terms of secure interface and enrollment.

Why is that?

Because of

Now that makes perfect sense if "Exchange

established by the State" means what it says, but they

think it encompasses HHS Exchanges.

cannot ensure coordination between HHS Exchanges and the

State agencies, and none of the 34 are doing it today.

So under their atextual reading of the statute, 34

States will suffer the penalty that this Court found in

NFIB as unconstitutionally coercive.

Well, the State

As to this Medicaid maintenance anomaly, the

government agrees that the purpose of this provision was

to freeze Medicaid payments until you had an Exchange

with subsidies, which makes sense, right?

coordinate the two.

And that's exactly what this provision means

under our interpretation.

with subsidies, the States will be frozen.

You want to

Until you have an Exchange

The government says, that thing ended on

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January 1, 2014.

It's nowhere in the statute; plus which it makes no

sense.

an Exchange with subsidies, right?

So there was a 3-year freeze on Medicaid that they were

powerless to get out of.

That's a figment of their imagination.

Before 2014, the States were powerless to have

They couldn't do it.

After 2014, if they don't want to have their

Medicaid frozen, all they have to do is establish an

Exchange.

So it's a less harsh restriction on States,

plus which it gives them another incentive in addition

to the subsidies to create the State Exchange, which is

the purpose enunciated in 1311.

I don't know -- oh, as to, yeah, maybe

somebody would from another -- if you had an employee

that let -- lived in other State, maybe he would be

subject to the employer mandate.

anomaly?

course they wanted to expand it.

thought it would really happen because, again, what they

thought was going to happen was there wouldn't be

neighboring States without it because nobody was going

to turn down this extraordinarily generous deal.

Why is that an

Congress likes the employer mandate.

They also never

I don't know if my 5 minutes are up, but

that -- that's -- that's my response to these anomalies.

I think that you --

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JUSTICE KAGAN:

MR. CARVIN:

JUSTICE KAGAN:

As I understand it --

I think if I could -Wow.

You've been talking a

long time.

MR. CARVIN:

JUSTICE KAGAN:

MR. CARVIN:

Yes.

Sorry.

You have two more sentences.

Even if there were anomalies in

these other sections, you don't transport them to 36B

which is concededly neither absurd and furthers the

purposes of the Act, just like in Utility Air, because

the word pollutants didn't work with one section, you

don't spread it like a virus throughout the rest of the

Act.

You cure it in that provision --

14
15

JUSTICE KAGAN:
sentences --

16
17

Those were two long

MR. CARVIN:

-- if and when there's any

litigation.

JUSTICE KAGAN:

MR. CARVIN:

JUSTICE KAGAN:

I think -- I think --

Oh, it was a long sentence.

Yes.

I -- I think I'm right

that Justice Breyer's question about anomalies, which

are replete in the Act, under your interpretation, did

not talk about what I think is one of the most glaring

ones, which is this qualified individualist thing, that

you're essentially setting up a system in which these

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Federal Exchanges, that there will be no customers and,

in fact, there will be no products, because Section 1311

says that the Exchange shall make health plans available

to qualified individuals, and then the next section says

that qualified individual means an individual who

resides in the State that established the Exchange.

So under your theory, if Federal Exchanges

don't qualify as Exchanges established by the State,

that means Federal Exchanges have no customers.

MR. CARVIN:

Which, of course, is not the

reading that the government's giving to it because

they're not going to tell you --

13
14

JUSTICE KAGAN:

Well, that's -- that's

because they don't share your theory.

MR. CARVIN:

JUSTICE KAGAN:

MR. CARVIN:

JUSTICE KAGAN:

MR. CARVIN:

No, no.
Under your theory --

No.
-- that's the result.

Well, no.

Let me be as clear

as I can.

going to empty out the HHS Exchanges because they

understand that there are numerous defenses even if you

interpret "established by the State" literally in the

qualified individuals provision.

If we prevail in this case, they are not

Number one defense that they will use is, it

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says you have to be a qualified individual with respect

to an Exchange.

statutory definition of Exchange is a 1311 Exchange.

they're only talking about State Exchanges, not these

HHS Exchanges, and it is in Section 1312, which

immediately follows 1311, before 1321.

As Justice Breyer pointed out, the

Number two, "qualified individual" doesn't

mean that -- that means you're guaranteed access.

doesn't mean if you're not qualified, you're absolutely

denied access.

provision, which says illegal aliens are neither

qualified individuals nor eligible for subsidies.

We know that from the illegal alien

JUSTICE KAGAN:

Ah, but look at the -- look

at the prisoner provision, which says prisoners

shouldn't be treated as qualified individuals.

your theory, this statute effectively said that

prisoners should be able to enroll on Federal Exchanges?

That makes no sense.

MR. CARVIN:

So under

It makes perfect sense to say

the States get a choice.

prison in February, they're getting out in April,

they've got to buy insurance under the individual

mandate.

buy insurance, that means they wouldn't be able to buy

insurance during the relevant enrollment period.

Think about somebody who's in

So if you said nobody who's incarcerated can

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makes perfect sense to give States the flexibility to

say, as to those incarcerated principles, you can make

them available for Exchanges, but under illegal aliens

we don't want to, which is why we are saying they are

neither qualified nor eligible.

Even if Justice -- even if you don't find

that the most pristine logic to be applied to a statute,

remember, we are interpreting these statutes to avoid an

absurd result.

And it's a basic principle of statutory

construction that you will give a plausible, if not the

most persuasive, reading to a statute to avoid the

result.

JUSTICE KAGAN:

But we are interpreting a

statute generally to make it make sense as a whole,

right?

four words.

context, the more general context, try to make

everything harmonious with everything else.

said, even at the very beginning of this argument as we

were going back and forth about my hypothetical, that,

of course, context matters and context might make all

the difference with respect to what those five words

mean.

We look at the whole text.

We don't look at

We look at the whole text, the particular

I think you

And I think what we're suggesting is that,

if you look at the entire text, it's pretty clear that

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you oughtn't to treat those five words in the way you

are.

MR. CARVIN:

I've given you the contextual

points before.

convey to you, Justice Kagan, is Section 1311.

the -- the statute must work harmoniously.

provide a -- subsidies to HHS Exchanges, you have

essentially gutted Section 1311's strong preference for

State Exchanges.

I think the key one that I'd like to

You say

If you

What will happen is precisely what did

happen under the IRS rule, two-thirds of the States are

saying no, we're not going to undertake this thankless

task of running these Exchanges with no incentives to do

so.

statute means is 36B quite clearly saying Exchanges are

available only on States.

they limited subsidies to that.

contrary legislative history at all.

So yes, it -- what I have here in terms of what the

I have 1311 explaining why

And there is no

What do they have, an atextual reading of

36B, which they can't explain why anybody would have

used those words if they wanted to convey Exchanges, a

rule that completely undermines the purposes of -- of

1311 and no supporting legislative history.

all the legal materials that this Court normally used to

discern what statute means, we clearly prevail.

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CHIEF JUSTICE ROBERTS:

General Verrilli, you'll have extra ten

Thank you, counsel.

minutes as well.

ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR.

ON BEHALF OF THE RESPONDENTS

6
7

GENERAL VERRILLI:

Justice, and may it please the Court:

8
9

Thank you, Mr. Chief

Standing has been raised, so let me start by

telling you where we stand on

standing and then I'd

appreciate the opportunity after that to summarize what

I think are the two key points in this case.

Now, with respect to standing, the question

-- the case or controversy question turns on whether any

of the four Petitioners is liable for the tax penalty

for 2014.

Now, this case was litigated in -- in the

district court in 2013 based on projections on the part

of each of the four Petitioners that they would earn a

certain income in 2014.

that.

-- of their income were such that they would qualify for

the unaffordability exception and they wouldn't have

standing.

projections were such that they wouldn't qualify for the

unaffordability exception and they would have standing.

They filed declarations saying

With respect to 2 of the 4, the projections were

With respect to the other 2, their

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But those were projections in 2013 about their income in

2014.

don't know, but Petitioners know whether any of the 4

have, in fact -- are, in fact, liable for the tax

penalty and that will depend on whether their -- their

actual income in 2014 matched their projections.

2014 has now come and gone, and we know -- we

Now, Mr. Carvin said there was factfinding

about this.

Petitioners -- the Petitioners did file a motion for

I'm afraid that's not correct.

The -- the

summary judgment, but the case was decided on the basis

of the government's motion to dismiss before discovery

and without any factfinding.

I'm assuming because Mr. Carvin has not said

anything about the absence of a tax penalty, that, at

least, 1 of the 4 has and is, in fact, liable for a tax

penalty, but that's the key standing question.

Now, with respect to the veterans point,

Your Honor, if it is the case, as Mr. Carvin tells us,

that Mr. Hurst was a veteran for only 10 months, then I

think he's correct, he would not qualify for VA health

care because you generally have to serve two years.

that's where we are on standing.

Now, if I could turn to the merits.

JUSTICE GINSBURG:

So are you saying one

person does have standing?

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GENERAL VERRILLI:

No, no.

It will depend

on whether as a factual matter 1 of the 4 has and is, in

fact, liable for the tax penalty for 2014.

information that is not in the government's possession;

it is in the possession of Petitioners' counsel.

should make one more point, with respect to 2015, there

were no projections, there's nothing in the record about

the possible income of any of the Petitioners for 2015,

so there's really nothing that would establish a case of

10
11

And that's

And I

controversy for 2014.

CHIEF JUSTICE ROBERTS:

Well, you're surely

not raising a standing question with us here for the

first time at oral argument, are you?

GENERAL VERRILLI:

Well, Mr. Chief Justice,

as I said, that based on the projections, it is our --

it was our understanding that at least 1 of the 4 would

be liable for a tax penalty.

has been raised and I've tried to identify for the Court

what I think is the relevant question, which is whether

any one of the 4 has, in fact -- is, in fact, liable for

a tax penalty because --

22
23
24
25

The question of standing

CHIEF JUSTICE ROBERTS:

This is -- this is

on a motion to dismiss, right?

GENERAL VERRILLI:

Well, that's correct,

Your Honor, but it does also go to this Court's

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jurisdiction.

is liable for a tax penalty for 2014, there just isn't

the case or controversy.

there's no -- there's no injury.

that's ultimately the relevant question here and -- with

respect to standing.

about veteran status, but I do think that's the relevant

question.

Because if there's no -- if none of the 4

None of them is liable,

And so I do think

I don't think there's a question

JUSTICE ALITO:

Isn't the question before us

as to standing whether the district court correctly held

in the motion to dismiss context that there was

standing?

don't we have to -- isn't that what's before us?

That may not be the end of the matter, but

GENERAL VERRILLI:

Well, that -- that may be

-- yes.

think about this as a question of mootness, I guess, in

that, you know, based on the projection, there was a

case or controversy, but if the projection didn't come

to pass and none of the plaintiffs is liable for a tax

penalty, then the case or controversy no longer exists.

But then you -- and you might alternatively

JUSTICE ALITO:

suggesting?

here?

24
25

Well, what are you

Should we have a -- should we have a trial

GENERAL VERRILLI:

No, I'm not suggesting

anything of the kinds.

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JUSTICE ALITO:

-- on this issue and find

what the facts are?

GENERAL VERRILLI:

Justice Alito, I did not

raise standing affirmatively, the Court raised it.

I'm just doing my best to let the Court know what our

position is on standing.

7
8

JUSTICE GINSBURG:

And

Well, you -- would you

send it back then to -- to the district court?

GENERAL VERRILLI:

Well, I guess no.

guess what I've said is that -- that Mr. Carvin hasn't

suggested that there's no plaintiff liable for a tax

penalty.

of the Petitioners --

14
15

Based on that, I'm inferring that at least one

JUSTICE SOTOMAYOR:
--

GENERAL VERRILLI:

JUSTICE SOTOMAYOR:

18
19
20
21

Would you -- would you

-- has standing.
Why wouldn't we accept a

representation by him?
GENERAL VERRILLI:

There's no reason not to

and I'm not -JUSTICE SOTOMAYOR:

If he -- if he makes a

representation that at least 1 of the 4 is -- has -- was

liable in 2014 and is liable in 2000 -- or will be

liable in 2015 --

GENERAL VERRILLI:

So I guess what I'm

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saying --

2
3

JUSTICE SOTOMAYOR:

I mean, we know at least

one of them won't because that's --

GENERAL VERRILLI:

What I'm saying about

that is I'm actually going to step further than that,

Justice Sotomayor, given that there hasn't been -- I'm

willing to accept the absence of a representation as an

indication that there is a case or controversy here,

and -- and so that's why, Mr. Chief Justice, we haven't

raised standing and that's what it -- but I do think

that the key question is whether one of the four is

liable for a tax penalty.

a case or controversy in the case.

You have to have that to have

If I could now, let me please turn to the

merits that summarize what I think are the two key

points.

text of the Act's applicable provisions and it's really

the only way to make sense of Section 36B and the rest

of the Act.

incoherent statute that doesn't work; and second, our

reading is compelled by the Act's structure and design.

Their reading forces HHS to establish rump Exchanges

that are doomed to fail.

statute's express -- status express textual promise of

State flexibility.

First, our reading follows directly from the

Textually, their reading produces an

It makes a mockery of the

It precipitates the insurance market

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death spirals that the statutory findings specifically

say the statute was designed to avoid, and of course it

revokes the promise of affordable care for millions of

Americans.

intended.

That cannot be the statute that Congress

JUSTICE SCALIA:

Of course it could be.

mean it may not be the statute they intended.

question is whether it's the statute that they wrote.

mean, you know, there -- there -- there are no

The

provisions in the statute that turn out to be ill --

ill-considered and ill -- ill-conceived.

GENERAL VERRILLI:

So it's not the statute

that they wrote, and the reason it's not the statute

that they wrote, I think -- I want to actually start, if

I could, picking up I think on a variation of the

hypothetical that Justice Kagan ask -- asked.

Petitioners' brief they throw down the gauntlet with

respect to a hypothetical about airports, and that -- a

statute requires a State to construct an airport, it

says the Federal government shall construct such airport

if the State doesn't, and no one would think that the

Federal government's airport was an airport constructed

by the State.

24
25

Well, what I would say to that is that if

those statutory provisions were conjoined with a

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provision that said airplanes may only land at airports

constructed by the State, then you would conclude

immediately that what -- that -- that that Federally

constructed airport qualifies as an airport constructed

by the State, and the -- because otherwise the statute

would make no sense.

here.

8
9

And the same exact thing is true

JUSTICE SCALIA:

There are no statutes that

make no sense.

GENERAL VERRILLI:

JUSTICE SCALIA:

This one makes sense.

If that is the case, every

statute must make sense and we will -- we will twist the

words as necessary to make it make -- that can't be the

rule.

15
16

GENERAL VERRILLI:

That isn't the rule.

But

the rule --

JUSTICE SCALIA:

GENERAL VERRILLI:

Of course not.
-- is that you read --

that you don't read statutory provisions in isolation;

you read them in context.

them in order to ensure that the statute operates as a

harmonious whole.

render the statutory provisions ineffective.

them to promote --

The rule is that you read

You read them so that you don't

JUSTICE SCALIA:

You read

Where is that possible.

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GENERAL VERRILLI:

JUSTICE SCALIA:

-- you read --

I mean, you acknowledge

that all of what you're saying only applies where there

are alternative readings that are reasonable.

the one that will do all the things that you say.

6
7

GENERAL VERRILLI:

And there is -- there

is --

8
9

You pick

JUSTICE SCALIA:

But, but -- if -- if it can

only reasonably mean one thing, it will continue to mean

that one thing even if it has untoward consequences for

the rest of the statute.

No?

GENERAL VERRILLI:

With respect to this

statute, first, let me -- I want to make two points.

First --

JUSTICE SCALIA:

Answer me in principle.

mean, is it not the case that if the only reasonable

interpretation of a particular provision produces

disastrous consequences in the rest of the statute, it

nonetheless means what it says.

GENERAL VERRILLI:

Is that true or not?

I think there are --

there are a couple of limitations on that principle.

The first is if what you have is a situation in which

the -- that creates conflict within a statutory scheme,

then the Court's got to do its best to try to harmonize

and reconcile the provisions.

And secondly --

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JUSTICE SCALIA:

Well, I disagree with that.

You have a single case in which we have said the

provision is not ambiguous, it means this thing, but,

Lord, that would make a terrible statute, so we will

interpret it to mean something else.

case where we've ever said that?

GENERAL VERRILLI:

Do you have one

I think -- I think Brown

& Williamson is a good example of that.

Williamson, the Court said, look, the definition of drug

In Brown &

and drug delivery device would actually seem

unambiguously to cover tobacco, but when you read that

provision in context, and considering the full scope of

the regulatory regime, it can't possibly mean that.

But let me -- let me actually work through

the text here, because I do think I can show you that

there's a quite reasonable reading of this statutory

text that allows you to affirm and requires you to

affirm the government's position.

JUSTICE ALITO:

But, General Verrilli,

before we get too immersed in a number of provisions of

this, could you respond to a question that was asked

during Mr. Carvin's argument.

interpretation of this Act, is it unconstitutionally

coercive?

GENERAL VERRILLI:

If we adopt Petitioners'

So the -- here's what I

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would say about that, Justice Alito.

would be -- certainly be a novel constitutional

question, and I think that I'm not prepared to say to

the Court today that it is unconstitutional.

be my duty to defend the statute and on the authority of

New York v.

I don't think there's any doubt that it's a novel

question, and if the Court believes it's a serious

question --

10
11

I think that it

It would

United States, I think we would do so.

JUSTICE KENNEDY:

Is it a -- I was going to

say does novel mean difficult?

(Laughter.)

JUSTICE KENNEDY:

Because it -- it -- it

does seem to me that if Petitioners' argument is

correct, this is just not a rational choice for the

States to make and that they're being coerced.

GENERAL VERRILLI:

JUSTICE KENNEDY:

19
20

But

So what I -And that you then have to

invoke the standard of constitutional avoidance.

GENERAL VERRILLI:

Well, what I was going to

say, Justice Kennedy, is to the extent the Court

believes that this is a serious constitutional question

and this does rise to the level of something approaching

coercion, then I do think the doctrine of constitutional

avoidance becomes another very powerful reason to read

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the statutory text our way.

do think with respect to the point that Your Honor's

making, remember, it's not just -- it's not just a

situation in which there is onerous conditions, onerous

consequences for State residents.

problem of notice here, that, you know, if you read

Petitioners' -- if you take Petitioners' reading of the

statute, then the idea that States were given added --

you can't possibly justify this as adequate notice to

Because I do think -- and I

It's also a profound

the States.

JUSTICE ALITO:

Well, Mr. -- General

Verrilli, let me ask you this about notice.

and lots of amicus briefs from States.

amicus briefs from States here; 34 states I think is --

that's the number of States that declined to or failed

to establish a State Exchange?

GENERAL VERRILLI:

JUSTICE ALITO:

We get lots

And we got two

Correct.

Now, if they were all caught

off guard and they were upset about this, you would

expect them to file an amicus brief telling us that.

But actually, of the 34, only 6 of them signed the brief

that was submitted by a number of States making that

argument.

brief; 17 of them are States that established State

exchanges.

23 States, 23 jurisdictions submitted that

Only 6 of the States that didn't establish

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State exchanges signed that brief, how do you account

for that?

GENERAL VERRILLI:

So, I -- I guess I'd make

two points about that, Justice Alito.

22 States there, States in both camps, all of whom told

you that they didn't understand the statute that way.

First, you've got

Now, with respect to the other 8 States that

filed the amicus brief on the other side, I actually

think there's quite an important point that goes to

their understanding of what this Act did.

this is an IRS rule that we're talking about here, and

the IRS put out a notice of proposed rulemaking saying

this is what we intend to do, and several of these

States -- Oklahoma, Indiana, Nebraska -- they filed

rulemaking comments in that -- in that proceeding.

if you look at those rulemaking comments you will see

that they address a number of issues, and they say

nothing, nothing about the -- the issue that's before

the Court now.

Remember,

And

So if they really understood the statute as

denying subsidies in States that did not set up their

own exchanges, that would have front and center in their

rulemaking comments, but they said nothing about it and

I think that tells you a good deal about where --

what -- what everybody understood that this statute

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was --

JUSTICE ALITO:

Well, there's another point

on notice on this Pennhurst argument that seems curious

to me.

signed up for a Federal program and then they say, oh,

my gosh, we didn't realize what we had gotten ourselves

into.

establish an exchange if we were to adopt Petitioners'

interpretation of the statute.

Usually when this argument comes up, a State has

But here, it's not too late for a State to

So going forward, there

would be no harm.

GENERAL VERRILLI:

Well, let -- let me

address that directly, and then I'd like to make a

broader point about statutory context in response.

directly, of course, I don't -- I don't think it's

possible to say there would be no harm.

will be cut off immediately and you will have very

significant, very adverse effects immediately for

millions of people in many States in their insurance

markets --

20
21

JUSTICE ALITO:
going forward.

GENERAL VERRILLI:

JUSTICE ALITO:

The tax credits

Well, I said -- I've said

Now

And then --

After -- after the current

tax year.
GENERAL VERRILLI:

And then going --

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JUSTICE ALITO:

Would it not be possible if

we were to adopt Petitioners' interpretation of the

statute to stay the mandate until the end of this tax

year as we have done in other cases where we have

adopted an interpretation of the constitutional -- or a

statute that would have very disruptive consequences

such as the Northern Pipeline case.

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9

GENERAL VERRILLI:

Sure.

Northern Pipeline

is an example of doing that, and it will be up to the

Court to decide whether it has the authority to do that.

I will say, this does seem different than Northern

Pipeline to me, because this is about money going out of

the Federal treasury, which is a different scenario.

But if the Court -- obviously, if that's where the Court

is going and that's what the Court thinks the proper

disposition is, that would reduce the disruption.

But what I think is another important point

to make here just as a practical matter, the idea that a

number of States, all of these States or a significant

number are going to be able to in the 6 months between

when a decision in the this case would come out and when

the new -- the new year for insurance purposes will

begin we'll be able to set up Exchanges, get them up, up

and running and get all the approvals done I think is

completely unrealistic.

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JUSTICE GINSBURG:

How long has it taken --

GENERAL VERRILLI:

Well, for -- just to give

you an example of the current time line, Justice

Ginsburg, the -- in order to be -- in order to have an

exchange approved and insurance policies on the exchange

ready for the 2016 year, those approvals have to occur

by May of 2015.

the -- of the time line that HHS is operating under.

Okay.

So that gives you a sense of

JUSTICE SCALIA:

What about -- what about

Congress?

sit there while -- while all of these disastrous

consequences ensue.

You really think Congress is just going to

I mean, how often have we come out with a

decision such as the -- you know, the bankruptcy court

decision?

that takes care of the problem.

time.

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19

Congress adjusts, enacts a statute that -It happens all the

Why is that not going to happen here?

GENERAL VERRILLI:

Well, this Congress, Your

Honor, I -- I --

(Laughter.)

GENERAL VERRILLI:

You know, I mean, of

course, theoretically -- of course, theoretically they

could.

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JUSTICE SCALIA:

I -- I don't care what

Congress you're talking about.

If the consequences are

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as disastrous as you say, so many million people

without -- without insurance and whatnot, yes, I think

this Congress would act.

GENERAL VERRILLI:

And -- but the relevant

question -- and then I'm going to try to get back to

the point I was trying to make in response to Justice

Alito's question.

8
9

The relevant question here is:

What did the

Congress that enacted this statute in 2010 do?

Did they

really set up a system in which the States are subject

to the kind of onerous situation that the Petitioner

claims?

indications -- objective, textual indications that that

cannot possibly have been the statutory scheme that

Congress tried to set up.

And I think there are three textual

First is the existence of the Federal

Exchanges.

Congress to have provided for Federal Exchanges if,

as -- as Mr. Carvin suggests, the statutory design was

supposed to result in every State establishing its

Exchange.

It would make no sense, no sense for

Second --

JUSTICE KENNEDY:

Well, wouldn't it have

been -- again, talking about Federalism -- a mechanism

for States to show that they had concerns about the

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wisdom and the workability of the Act in the form that

it was passed?

GENERAL VERRILLI:

So, Justice Kennedy, I

think the Federalism values are promoted by our

interpretation, because if -- if that is, indeed, what a

State thought, if a State really would have preferred

that -- not to have the State government participate in

the implementation of this Act, for reasons that Your

Honor identified, the structure of the Act that Congress

put in place and that we're advocating for today fully

vindicates that concern.

participate without having any adverse consequences

visited upon the citizens of the State.

They can decide not to

And that's why our reading is the

pro-Federalism reading.

to me that is the anti-Federalism reading, and that's a

powerful reason to reject it.

It's their reading that seems

And if I could go to the second statutory

point, which is related to what we're talking about,

Justice Kennedy, which is Section 1321, says that this

statute is designed to afford State flexibility.

flexibility.

"flexibility" to use it in the manner that Petitioners

say the statute uses it, because it's the polar opposite

of flexibility.

State

It would be an Orwellian sense of the word

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And the third point, seems to me, is the

notice point, that if, indeed, the plan was, as Mr.

Carvin said, that every State was going to establish an

Exchange for itself and that that would cure all of the

massive statutory anomalies and textual anomalies and

absurdities and impossibilities that his reading

provides for, if that was really the plan, then the

consequence for the States would be in neon lights in

this statute.

10
11

You would want to make absolutely sure

that every State got the message.

But instead what you have is a subclause in

Section 36B, which is a provision that addresses the

eligibility of individual taxpayers for taxing purposes.

JUSTICE SCALIA:

This is not the most

elegantly drafted statute.

through on expedited procedures and didn't have the kind

of consideration by a conference committee, for example,

that -- that statutes usually do.

It was -- it was pushed

What -- what would be so surprising if --

if, among its other imperfections, there is the

imperfection that what the States have to do is not --

is not obvious enough?

inconceivable.

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It doesn't strike me as

GENERAL VERRILLI:

So, Justice Scalia, I --

I'm going to answer that question by talking about the

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legislative process, because I think it is quite

relevant and I think it ought to be quite relevant even

to you with respect to the question you just asked.

The language here in 36B was not the product

of some last-minute deal, it wasn't the product of

scrambling at the end.

the statutory structure with the language of 36B about

tax credits, the language that's in 1311, the language

that's in 1321 was the product of the Senate Finance

Committee markup, which went on for weeks and weeks.

The language that emerged here,

It was a public -- it was a public hearing.

It -- frankly, it was covered by C-SPAN.

watch it on the C-SPAN archives if you want to; and you

will see coming out of that that the -- that the

understanding, the clear understanding was with this

statutory setup would result in subsidies being

available in every State.

JUSTICE SCALIA:

You can go

There were senators, were

there not, who were opposed to having the Federal

government run the whole thing, because they thought

that would lead to a single-payer system, which -- which

some people wanted.

provision is it prevents -- it prevents the -- the

Federalization of -- of the entire thing.

GENERAL VERRILLI:

And the explanation for this

No.

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JUSTICE SCALIA:

That's -- that's certainly

a plausible explanation --

GENERAL VERRILLI:

JUSTICE SCALIA:

No.

-- as to why the provision

is there.

GENERAL VERRILLI:

Mr. Carvin has floated

that as an explanation and he -- and he suggests that it

was Senator Ben Nelson who required it.

absolutely no contemporaneous evidence, none whatsoever,

We -- there is

that anybody thought that way, that the -- the solution

to the problem that Your Honor's identified is what

Congress did by having States have the option to set up

their own Exchanges with State-by-State Federal

fallbacks rather than a national system.

Senator Nelson has made clear, he has stated

that he had no intention of the kind.

contemporaneous evidence at all that anyone did.

do -- and what Mr. Carvin has suggested is that this was

the product of some deal to try to get votes so the Act

could get passed.

There's no
And I

What I would suggest to Your Honor is that

there is objective proof that that is not true.

the provisions in the Act that were negotiated at the

end to secure the necessary votes are in Title X of the

Act.

The --

And if you look in the -- in the Act, Pages 833 to

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924 -- that's Title X -- you can see all of the

amendments.

the statutory language before the Court now.

Not a single one has anything to do with

JUSTICE ALITO:

Well, the puzzle that's

created by -- by your interpretation is this:

Congress did not want the phrase "established by the

State" to mean what that would normally be taken to

mean, why did they use that language?

use other formulations that appear elsewhere in the Act?

Why didn't they

Why didn't they say, "established under the Act"?

didn't they say, "established within the State"?

didn't they include a provision saying that an Exchange

established by HHS is a State Exchange when they have a

provision in there that does exactly that for the

District of Columbia and for the territories?

that they are deemed to be States for purposes of this

Act.

GENERAL VERRILLI:

JUSTICE ALITO:

GENERAL VERRILLI:

Why
Why

It says

So --

So why would they do that?

So, of course, the

provision says -- doesn't say "established by the State"

with a period after State.

It says "established by the

State under Section 1311."

And our position textually

is -- and we think this is clearly the better reading of

the text -- that by cross-referencing Section 1311,

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effectively what Congress is doing is saying that

Exchanges established through whatever mechanism,

Exchanges set up by the States themselves, Exchanges set

up by --

JUSTICE KENNEDY:

So you're saying that

by -- by cross-reference to 1311, they really mean 1311

and 1321?

8
9
10
11
12

GENERAL VERRILLI:

that's true.
JUSTICE KENNEDY:

All right.

That -- that

seems to me to go in the wrong direction -GENERAL VERRILLI:

JUSTICE KENNEDY:

GENERAL VERRILLI:

JUSTICE KENNEDY:

Well, let me -- and

I do think that, and let me walk through why I think

Yes.

No, I think --- for your case -I think --- not the

right direction.
GENERAL VERRILLI:

No, I think it goes in

the right direction, if you'll just ride with me for a

little bit, Justice Kennedy, on this.

JUSTICE ALITO:

Well, before you -- before

you get on to that, that -- your answer doesn't explain

why -- why "by the State" is in there.

they say "established under 1311"?

GENERAL VERRILLI:

Then why didn't

Well, so the second point

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is that wherever this provision appears in the Act,

"established by the State under Section 1311," it's

doing work; and the work it's doing is saying, what

we're talking about is the specific Exchange established

in the specific State as opposed to general rules for

Exchanges.

Maintenance-of-Effort provision that -- it works the

same way.

If you look at the Medicaid

JUSTICE ALITO:

"in the State"?

the State."

Well, why didn't they say

That's the phrase you just used, "in

Why didn't they say "in the State"?

GENERAL VERRILLI:

Because -- I suppose they

could have, but it worked perfectly well this way.

you look at the qualified individual provision, it's

clearly how they're using it with respect to the

qualified individual provision.

that provision, it says a qualified individual is a

person who is located -- who resides in the State that

established the Exchange.

about is a geographical reference to the particular

State.

every time the -- the statute uses that phrase.

doing that work, and that's why it's in there.

24
25

And with respect to

Clearly, what they're talking

That's what's going on there and what's going on

So it's

But now if I could go back to your point,

Justice Kennedy, it says, "established by the State

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under Section 1311."

State shall establish an American Health Benefits

Exchange for the State."

an urging that States do it.

establish."

Section 1311(b)(1) says, "Each

It's not, as Mr. Carvin said,

It says, "Each State shall

Now, we know that when Congress used that

language, "each State shall establish," it must have

meant something more inclusive than each State

government shall itself set up the Exchange.

We know that because Congress is legislating

against the backdrop of the Tenth Amendment, and so it

couldn't impose that requirement.

because of Section 1321, because Section 1321 provides

the means by which the 1311(b)(1) requirement is

satisfied.

meet the Federal requirements for Exchanges, or it can

be satisfied in the event that a State doesn't or tries,

but comes up short by HHS stepping in and establishing

the Exchange.

And we know that

It will be satisfied by a State electing to

JUSTICE ALITO:

So when the statute says,

"each State shall establish," it really means the

Federal government shall establish if a State doesn't

establish.

GENERAL VERRILLI:

JUSTICE ALITO:

I think the right way --

And if that were the correct

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interpretation, you wouldn't 1321 at all.

GENERAL VERRILLI:

So -- no.

I think the

right way to think about this, Justice Alito, is that

what's going on here is that -- the right place to

focus, let me put it that way.

here is not on the who, but on the what; on the thing

that gets set up and whether it qualifies as an Exchange

established by the State, and these Exchanges do

qualify.

The right place to focus

And the reason they qualify is because they

fulfill the requirement in Section 1311(b)(1) that each

State shall establish an Exchange.

that because it says to the HHS that when a -- when a

State hasn't elected to meet the Federal requirements,

HHS steps in, and what the HHS does is set up the

required Exchange.

referring to the -- immediately prior to the required

Exchange where the only Exchange required in the Act is

an Exchange under Section 1311(b)(1).

And 1321 tells you

It says such Exchange, which is

So it has to be that that's -- that what HHS

is doing under the plain text of the statute is

fulfilling the requirement of the Section 1311(b)(1)

that each State establish an Exchange, and for that

reason we say it qualifies as an Exchange established by

the State.

That's reinforced, as Justice Breyer

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suggested earlier, by the definition which says that an

Exchange is an Exchange established under Section 1311.

1311, again, has 1311(b)(1) which says each State shall

establish an Exchange.

And it has to be that way because

Petitioners have conceded, and it's at page 22 of their

brief, that an Exchange that HHS sets up is supposed to

be the same Exchange that Petitioners say function just

like an Exchange that the State sets up for itself.

JUSTICE SCALIA:

Well, you're -- you're

putting a lot of weight on the -- on the -- one word,

such, such Exchange.

unrealistic interpretation of "such" to mean the Federal

government shall establish a State Exchange.

Such -- it seems to me the most

Rather, it seems to me "such" means an

Exchange for the State rather than an Exchange of the

State.

establish a State Exchange.

know, "such" must mean something different.

How can the government -- Federal government

That is gobbledygook.

GENERAL VERRILLI:

You

It isn't gobbledygook,

Justice Scalia.

something that Justice Alito asked earlier.

that -- if the language of 36B were exactly the same as

it is now, and the statute said in 1321 that an Exchange

set up -- set up by HHS shall qualify as an Exchange

And I think about it and I go back to

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established by the State for purposes of Section 1311,

you wouldn't change the language of 36B one iota, and

that wouldn't be any doubt in anyone's mind that

the -- that subsidies were available on Federal

Exchanges.

reading 1311 and 1321 together, that is what the statute

does.

8
9

And what we're saying is that effectively

And that is certainly -- that is a

reasonable reading of the statute.

It is really the

only reading of the statute that allows you to be

faithful to the text of 1311(b)(1), the word "shall,"

and to the Tenth Amendment.

In order for their --

JUSTICE SCALIA:

The word "such" means

not -- not just the Exchange that the State was supposed

to set up, but it means the State Exchange.

GENERAL VERRILLI:

It means an Exchange that

qualifies as satisfy -- as an exchange established by

the State because it satisfies the requirement of

1311(b)(1).

JUSTICE SCALIA:

No.

You -- you have to say

it means the State Exchange.

hinges on the fact that a Federal Exchange is a State

Exchange for purposes --

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25

GENERAL VERRILLI:

You have to -- your case

It hinges on -- it hinges

on it qualifying as the State Exchange or being

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equivalent to the State Exchange for the purpose of the

operation of the statute.

of the particular textual provisions, and once you've

concluded that it's a reasonable reading of the

particular textual provisions, then you have to read it

the way that we say it needs -- it is to be read because

it is the only way to make sense of the statute as a

whole.

the Act's qualified individual and qualified health plan

That is a reasonable reading

It is the only way to bring it into harmony with

provisions which do lead to what they admit is an

absurdity under their reading under the law.

JUSTICE ALITO:

Would you agree that

there -- that there are provisions of the Act where the

exact same phrase, "established by the State," has to be

read to mean established by the State and not by HHS?

GENERAL VERRILLI:

JUSTICE ALITO:

I don't --

There are some provisions

like that.

GENERAL VERRILLI:

They've pointed out some,

but I think they're wrong about each one, and I don't

know what Your Honor has in mind.

JUSTICE ALITO:

All right.

Well, let's take

one -- let's take one.

to it.

that each State shall establish procedures to ensure

I'd be interested in your answer

42 U.S.C. Section 1396w-3(h)(1)(D) which says

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that an Exchange established by the State utilizes a

secure electronic interface.

is read to -- if "Exchange established by the State"

there is read to mean an HHS Exchange, that means that

the State in which that Exchange is established is

responsible for making sure that the Federal Exchange

has a secure electronic interface.

8
9

And they say that if that

GENERAL VERRILLI:
about that.

Yes.

They're just wrong

It's just completely wrong.

The statute

says that the State shall -- first of all, the statutory

obligation is addressed to the State Medicaid and CHIP

agencies.

procedures to ensure the coordination.

regulations setting forth what that statutory provision

requires of States in those circumstance.

where there is a federally facilitated Exchange has met

the requirements and fulfilled them, and it worked

perfectly fine.

What it says is they shall establish

HHS has issued

Every State

There's no anomaly there at all.

JUSTICE ALITO:

JUSTICE SCALIA:

And the State -It met -- it met the

requirements of the regulations you say, but do the

regulations track the statute?

GENERAL VERRILLI:

JUSTICE SCALIA:

Yes, they do.

Do -- do they give the

State authority to -- to say whether or not these --

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these conditions have been met?

GENERAL VERRILLI:

They -- the requirements

are imposed on the State Medicaid and CHIP end of the

relationship.

regulation to implement that statutory requirement, and

it's satisfied in every State.

That's what the statute does, and the

And, of course, as Your Honor reading it to

me said, it does say -- and I think that proves our

point.

The statute says each State shall.

It doesn't

say States that have set up Exchanges for themselves

shall.

there is going to be something that qualifies as an

Exchange established by the State in every State.

there's no anomaly there, and if Your Honor wants to ask

me about any of the other ones, you can, but I -- there

are no anomalies frankly.

It says each State shall.

JUSTICE ALITO:

It presupposes that

As I understand your answer

to be that there are Federal regulations telling the

States what they have to do here, and they've all done

it.

obligation under the regulations to make sure that there

is a proper interface with the Federal Exchange.

But the fact remains that the State has some

GENERAL VERRILLI:

the interface, yes.

agencies.

On the State's side of

But that's the CHIP and Medicaid

Those are State government agencies, and it's

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their side of the interface that the statute governs.

And, you know, as I said, I don't think

there are anomalies of our reading, but if they are,

they pale in comparison to the anomalies on the other

side.

about the qualified health plan and the qualified

individual, because the statute is quite clear in

Section 1311 that an Exchange, not an Exchange

established by the State, but an Exchange can only sell

I mean, I really do want to focus on this point

a qualified health plan.

health plan that is not a qualified health plan.

And

that's not an Exchange established by the State.

It is

an Exchange.

It is forbidden from selling a

Now, the statute also says that to certify a

health plan as qualified, the Exchange has to decide

that it is in the interest of qualified individuals.

Now, qualified individuals are persons who

reside in the State that established the Exchange.

if you read the statute, the language, the way

Mr. Carvin reads it instead of the way we read it, you

come to the conclusion and in a State in a federally

facilitated Exchange, there are no qualified

individuals.

qualified health plan as being in the interest of

qualified individuals because there aren't any, so there

Therefore, the Exchange cannot certify a

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aren't any qualified health plans that can lawfully be

sold on the Exchange.

JUSTICE ALITO:

What is the provision that

says that only a -- only a qualified individual can

be -- can enroll in a plan under an Exchange?

GENERAL VERRILLI:

So let -- the -- the -- I

will address that, but I just want to make clear the

provision I'm talking about with respect to the -- the

prohibition on selling a qualified health plan to

anybody on -- on anything other than a qualified health

plan on an Exchange is 1311(d)(2)(B), which is at page

8a of the appendix to our brief.

unambiguous.

by the State, an Exchange may not make available any

health plan that is not a qualified health plan.

It's absolutely

An Exchange, not an Exchange established

JUSTICE ALITO:

So --

Qualified health plan.

But

what's the provision you were referring to when you said

that an Exchange may enroll only a qualified individual?

GENERAL VERRILLI:

Well, I -- what they --

what the statute says throughout is that -- that

qualified individuals are eligible to purchase on

Exchanges, and it's the necessary meaning of that phrase

that if you are not a qualified individual, then you are

not eligible to purchase health care on an Exchange

because otherwise, the word qualified would not have any

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meaning.

is to distinguish between people who are eligible and

people who are ineligible.

wouldn't make any sense because think of the people who

are not qualified individuals.

live in the State, the people in prison, and they're

unlawfully documented.

The whole -- the meaning of the word qualified

8
9

And as a policy matter, it

The people who don't

JUSTICE SOTOMAYOR:
1312.

This is part of Section

A person qualified to purchase on an Exchange

must, quote, reside in the State that established the

Exchange.

GENERAL VERRILLI:

Right.

And there are no

such people in 34 States under Mr. Carvin's theory of

the statute.

run into a textual brick wall.

So it just doesn't -- it just -- you just

JUSTICE ALITO:

I understand your argument

is that it's a -- it's a logical inference from a number

of provisions that only a qualified individual may

purchase the policy, but I gather there is no provision

that you can point to that says that directly.

GENERAL VERRILLI:

It's -- well, that's what

qualified means, Justice Alito.

know, if you're not qualified, you're unqualified.

so, I mean, that's what it means.

reading the word "qualified" out of the statute if you

It means that, you

Alderson Reporting Company

And

And so you're just

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read it that way.

JUSTICE ALITO:

"Qualified" is used in

the -- in the lay sense of the term, it's not a

technical term here.

GENERAL VERRILLI:

Well, I -- I think --

well, given the way it's defined, it's defined as a

person who resides in the State.

of State.

clear that you weren't going to be allowed to shop for

It excludes people out

It does that because the statute was quite

insurance policies across State lines because that would

infringe on traditional State prerogatives regulating

insurance.

doesn't make any sense to say that prisoners should be

able to get insurance.

because they get out of prison.

specific statutory provision that says when you face a

changed-life circumstance, such as getting out of

prison, you can sign up for insurance at that point.

makes the point about unlawfully present persons being

both unqualified and not being able to be covered, but

that's not -- that's not surplus, that's there for a

very important reason, which is that someone can be in

lawful status and, therefore, be eligible for health

care, but then lose lawful status and at that point,

they can no longer be covered.

And it -- and with respect to prisoners, it

Mr. Carvin says, yes, it does

Well, there's a

So, just none of that

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works for them.

None of that works for them.

And -- but to -- really, to get to the

fundamental point here that both at the level of text,

you have clear irresolvable conflicts so that the

statute can't work if you read it Mr. Carvin's way.

have, at the level of text --

7
8

JUSTICE KENNEDY:

You

Is -- is that a synonym

for ambiguity?

GENERAL VERRILLI:

I think so, exactly

right, Justice Scalia -- I mean, excuse me, Justice

Kennedy --

precisely because you have to -- you know, this is a

statute that's going to operate one way or the other.

And the question is how it's going to operate.

you read it their way, you --

that -- that you have ambiguity there

JUSTICE KENNEDY:

And when

Well, if it's -- if it's

ambiguous, then we think about Chevron.

me a drastic step for us to say that the Department of

Internal Revenue and its director can make this call one

way or the other when there are, what, billions of

dollars of subsidies involved here?

millions?

GENERAL VERRILLI:

But it seems to

Hundreds of

Yes, there are billions

of dollars of subsidies involved here.

about that --

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But two points

Official - Subject to Final Review

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JUSTICE KENNEDY:

And it -- it seems to me

our cases say that if the Internal Revenue Service is

going to allow deductions using these, that it has to be

very, very clear.

GENERAL VERRILLI:

JUSTICE KENNEDY:

So -And it -- it seems to me a

little odd that the director of Internal Revenue

didn't -- didn't identify this problem if it's ambiguous

and advise Congress it was.

GENERAL VERRILLI:

So a few points about

that with respect to Chevron deference.

think Chevron deference clearly supports the government

here and I'll explain why.

you can resolve and should resolve this statute and the

statute's meaning in our favor even without resort to

Chevron deference.

statute as a whole to make it work harmoniously directs

you to do.

Federalism that we've been describing here direct you to

do.

the statute, it's what the doctrine of constitutional

avoidance directs you to do.

First, we do

But before you get to that,

That's what the canon of reading a

It's what the very important principles of

If you think there's a constitutional problem with

Now, with respect to Chevron, Section 36B(g)

of the statute expressly delegates to the IRS the

specific authority to make any decisions necessary to

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implement Section 36B.

Congress said the IRS should do this.

question, but as the Court said in City of Arlington two

terms ago, Chevron applies to big questions as well as

small.

clarity in -- in a tax deduction and IRS in the

statutory reading of tax deductions, there is a learned

treatise that describes that as a false notion.

is certainly not consistent with this Court's unanimous

So you don't have any ambiguity.

It is a big

Your Honor raised this point about the need for

And it

decision in Mayo two terms ago that Chevron applies to

the tax code like anything else.

And so --

CHIEF JUSTICE ROBERTS:

If you're right --

if you're right about Chevron, that would indicate that

a subsequent administration could change that

interpretation?

GENERAL VERRILLI:

I think a subsequent

administration would need a very strong case under step

two of the Chevron analysis that that was a reasonable

judgment in view of the disruptive consequences.

I said, I think you can resolve and should resolve this

case because the statute really has to be read when

taken as a whole to adopt the government's position.

But I do take --

JUSTICE SOTOMAYOR:

JUSTICE ALITO:

So as

General --

If there are any -- if there

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are any tax attorneys in the -- in the courtroom today,

I think probably they wrote down what you just said.

When we get future tax cases, the United States is going

to argue that we should not read them to -- you know,

there should be no presumption that a tax credit is

provided by that statute.

GENERAL VERRILLI:

You should -- you should

read it according to its terms.

provision according to its terms and you read it in

And when you read this

context and you read it against the background

principles of Federalism, you have to affirm the

government's interpretation.

13
14

Thank you.

CHIEF JUSTICE ROBERTS:

Thank you, General.

Four minutes, Mr. Carvin.

REBUTTAL ARGUMENT OF MICHAEL A. CARVIN

ON BEHALF OF THE PETITIONERS

MR. CARVIN:

Very quickly on standing.

Thank you, Mr. Chief Justice.

Mr. Hurst would

be subject to a penalty absent relief by this Court for

2014.

course, would face the same principle for 2015.

government is suggesting that their case has become moot

because of changed circumstances, under Cardinal

Chemical 508 U.S. 83, it's their burden to raise it, not

ours to supplement the record.

As I've discussed, both he and Mrs. Leevy, of

Alderson Reporting Company

If the

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In terms of the anomaly, in terms of all the

States losing -- 34 States losing their Medicaid funds,

the Solicitor General greatly distorted the statute.

It's printed at 64A of their exhibit.

shall establish procedures," so the notion that HHS

established them is obviously contrary to that.

says, "the State will identify people to enroll on their

Exchanges."

Exchanges if there are no such Exchanges in the State.

It says, "a State

Well, they can't enroll anybody on their

Therefore, by the plain language, if you

adopt the notion that "Exchange established by the

State" means established by HHS, all of them need to

lose their Medicaid funding.

JUSTICE SOTOMAYOR:

Could I follow up on

something the General ended with, which -- and Justice

Kennedy referred to, which is the need to read subsidies

limited.

need to ensure that exemptions from tax liability are

read in a limited way.

giving more exemptions to employers not to provide

insurance, more exemptions to States and others or to

individuals, how -- how does that work?

got two competing --

24
25

But so is -- in a limited way.

MR. CARVIN:

But so is the

And under your reading, we're

No, no.

I mean, you've

You do get more

exemptions for employers under our reading, but -- and

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the same principle applies.

undisputed that that one is unambiguous.

Is it unambiguous?

JUSTICE SOTOMAYOR:

MR. CARVIN:

It's

Well --

The dispute here is whether or

not if they win under ambiguity, and they don't because

the canon requires unambiguous statutes not to afford

the tax credit.

think that's very helpful in terms of Justice Kennedy's

concern about Federalism.

In terms of the employer mandate, I

Under their view of the

statute, the Federal government gets to unilaterally

impose on States -- there's an amicus from Indiana

describing this -- a requirement that States insure

their own individuals.

to States.

are absolutely helpless to stop this Federal

intervention into their most basic personnel practices.

Whereas under our theory, they are able to say, no.

actually, the more intrusive view of the statute is

theirs.

It implies the employer mandate

So their -- under their theory, the States

In terms of the funding condition, head on,

Your Honor, I think my short answer is as follows:

There's no way to view this statute as more coercive or

harmful than the Medicaid -- version of Medicaid that

was approved by this Court in NFIB and, indeed, the NFIB

dissenting opinion pointed to this provision as

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something that was an acceptable noncoercive

alternative.

constitutional doubt under a novel constitutional

question, as Justice Scalia pointed out, there's no

alternative reading of the statute that -- that avoids

that, because either way, you're intruding on State

sovereignty.

8
9

But in all events, even if there's a

In terms of the anomaly, in terms of

qualified individuals, as predicted, Solicitor General

did not come up here and tell you, yes, if we prevail

here under this theory, they're going to have to empty

out the HHS Exchanges.

argument that with respect to an Exchange under the

definitional section only applies to State Exchanges.

So I think we can view this as -- as a complete

tendentious litigation position and not a serious

statutory interpretation.

Nor did he even respond to my

In terms of the qualified health plan that

he discussed with you, Justice Alito, the complete

answer to that is that is in 1311.

1311 only is talking about State established

Exchanges.

therefore, it can't possibly create an anomaly with

respect to those HHS Exchanges.

It has no application to HHS Exchanges,

CHIEF JUSTICE ROBERTS:

Alderson Reporting Company

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The case is submitted.

(Whereupon, at 11:34 a.m., the case in the
above-entitled was submitted.)

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$1800 5:16
$750 4:3
a.m 1:15 3:2
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above-entitled
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absence 40:14
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absent 21:8
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absolutely 21:5
26:4 36:9 57:9
59:9 71:12
79:15
absurd 34:9
37:9
absurdities 57:6
absurdity 67:11
accept 11:17
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acceptable 80:1
accepted 16:15
access 36:8,10
accomplishes
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account 51:1
acknowledge
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act 7:10 8:7
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34:10,13,22
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51:10 55:3
56:1,8,9 59:19
59:23,25,25
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Act's 44:17,21
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actual 40:6
added 50:8
addition 33:10
address 51:17
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addressed 68:11
addresses 57:12
adequate 50:9
adjusts 54:15
administration
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admit 67:10
adopt 16:23
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adopted 53:5
advance 5:15
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adversarial 4:17
adverse 52:17
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advocating
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affect 22:25
affirm 48:17,18
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affirmatively
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afford 56:21
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affordable 45:3
afraid 40:8
agencies 32:13
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agency 7:23
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agnostic 11:3,5
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ago 76:4,10
agree 4:10 6:8
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agrees 31:16
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36:13
Air 19:24 34:10
airplanes 46:1
airport 45:19,20
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airports 45:18
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AL 1:3,8
alien 36:10
aliens 36:11
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Alito 11:7,10,16
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49:1 50:11,18
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alleviated 6:6
allow 19:7 75:3
allowed 73:9
allows 48:17
66:10
alternative 47:4
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alternatively
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Amanda 9:23
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ambiguity 9:7
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ambiguous
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Amendment
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amendments
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amicus 25:7
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amount 23:14
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analysis 76:18
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anti-Federalism
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anybody 25:3
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anyone's 66:3
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appendix 4:1
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applicable 44:17
application
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applies 47:3
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appreciate 7:15
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approaching
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archives 58:13
argue 77:4
argument 1:14
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atextual 32:14
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awfully 27:13
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backdrop 63:11
background
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bankruptcy
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base 15:9
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basic 14:6 15:23
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basis 40:10
beginning 37:19
behalf 1:17,20
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bill 22:16
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borrowing 23:7
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breath 14:12
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brick 72:15
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briefly 25:23
briefs 13:13
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broader 52:13
brought 4:20
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burden 77:24
burdens 27:12
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busy 10:2,4
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camps 51:5
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center 51:22
certain 39:19
certainly 17:5
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cetera 7:24
chambers 10:18
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change 66:2
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changed 77:23
changed-life
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Chemical 77:24
Chevron 74:17
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Chief 3:3,8 24:3
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39:1,6 41:11
41:14,22 44:9
76:12 77:13,17
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children 15:9
CHIP 32:7
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choice 14:17,19

Alderson Reporting Company

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36:20 49:15
choices 27:12
29:14,15
circumstance
68:15 73:17
circumstances
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citizens 15:3
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City 76:3
claims 55:12
clarity 5:2 28:5
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Clean 19:24
clear 4:2 5:3
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clearly 22:6
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clerk 9:24
clerks 9:22 11:8
11:8
clock 31:12
code 5:3 7:17
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coerced 14:24
15:1 49:16
coercion 15:25
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coercive 15:18
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companies 21:5
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conflict 47:23
conflicts 74:4

confront 18:9
confused 28:23
Congress 11:5
11:21 14:8
19:5 20:6,8
21:8,10 23:1,6
26:7 27:8,11
33:17 45:4
54:10,10,15,18
54:25 55:3,9
55:15,18 56:9
59:12 60:6
61:1 63:6,10
75:9 76:2
Congress's 28:3
congressional
24:25
conjoined 45:25
connection
31:23
connotation
12:20
connote 12:20
connotes 12:14
consequence
17:12 57:8
consequences
18:1 20:4 30:7
47:10,18 50:5
53:6 54:12,25
56:12 76:19
consideration
57:17
considering
48:12
consistent 76:9
Constitution
7:17
constitutional
16:23 18:10
27:9 49:2,19
49:22,24 53:5
75:20,21 80:3
80:3
constitutionali...
18:22
construct 45:19

45:20
constructed
45:22 46:2,4,4
construction
3:11,15 14:7
18:20 37:10
contemporane...
59:9,17
context 12:1,7
12:11 13:7,8
13:17 15:25
23:19,20 25:20
26:1,1 37:17
37:17,21,21
42:11 46:20
48:12 52:13
77:10
contextual 38:3
continue 47:9
contradicts 22:6
contrary 38:18
78:6
contrast 22:12
contravention
15:15
controversy
39:13 41:10
42:3,18,20
44:8,13
convey 17:8
26:17,21 38:5
38:21
coordinate 32:6
32:21
coordination
32:12 68:13
correct 8:12,15
14:5 17:17
18:16 40:8,20
41:24 49:15
50:17 63:25
correctly 42:10
cost 16:19
costs 15:10,11
counsel 18:8
39:1 41:5
80:25

countless 16:11
country 15:12
couple 47:21
course 4:15
10:23 19:8
26:4 28:10,22
30:25 33:18
35:10 37:21
45:2,6 46:17
52:14 54:22,22
60:20 69:7
77:21
court 1:1,14 3:9
4:13,17,20
15:24 16:10
17:9 18:8
32:15 38:24
39:7,17 41:18
42:10 43:4,5,8
48:9 49:4,8,21
51:19 53:10,14
53:14,15 54:14
60:3 76:3
77:19 79:24
Court's 41:25
47:24 76:9
courtroom 77:1
courts 4:16
cover 48:11
coverage 3:23
15:8 29:18,21
32:2
covered 15:9
58:12 73:20,25
create 10:8 14:9
16:16 19:14
21:13 29:24
33:11 80:23
created 9:6,7,17
15:5 18:3 60:5
creates 47:23
credit 6:12
16:18 28:11
29:6,25 77:5
79:7
credits 6:13
52:15 58:8

Alderson Reporting Company

cross-reference
61:6
cross-referenc...
60:25
cure 34:13 57:4
curious 52:3
current 52:23
54:3
customers 13:14
20:14 35:1,9
cut 52:16
D
D 3:1
D.C 1:10,17,20
daily 9:19
DAVID 1:3
deadline 30:10
deal 18:1,2 20:6
20:9,11 21:11
23:16,17 24:23
24:23 33:22
51:24 58:5
59:19
death 15:4 16:17
22:14,25 45:1
decide 29:2
53:10 56:11
70:15
decided 40:10
decision 30:6,9
53:21 54:14,15
76:10
decisions 75:25
declaration 3:20
declarations
39:19
declined 50:15
deduction 76:6
deductions 75:3
76:7
deemed 60:16
defend 49:5
defense 35:25
defenses 35:22
deference 75:11
75:12,16

Official - Subject to Final Review

defined 7:18,19
12:25 73:6,6
defines 27:22
definition 7:20
8:9 9:1 30:19
31:6 36:3 48:9
65:1
definitional 9:6
9:17 80:14
definitions 7:21
7:25
delegates 75:24
delivery 48:10
demand 21:4
demonstrably
22:4
denied 36:10
denotation
12:21
denying 51:21
Department
1:19 27:25
74:18
depend 11:25
40:5 41:1
depends 12:1
deposition 5:9
described 29:23
describes 76:8
describing 75:19
79:12
design 44:21
55:19
designed 45:2
56:21
detain 7:6
device 48:10
dictates 3:12
difference 37:22
different 10:16
19:2 25:15
53:11,13 65:19
difficult 49:11
difficulties
29:23
direct 75:19
directed 27:24

direction 61:12
61:17,19
directly 44:16
52:12,14 72:20
director 74:19
75:7
directs 75:17,22
disabled 5:3
disagree 28:8
48:1
disastrous 20:4
47:18 54:11
55:1
discern 38:25
discovery 40:11
discussed 77:20
80:19
dismiss 40:11
41:23 42:11
disposition
53:16
dispute 6:17
79:4
disputed 4:12
disruption
53:16
disruptive 53:6
76:19
dissenting 20:7
79:25
distinct 26:6
distinguish 72:2
distinguishes
20:6
distorted 78:3
district 39:17
42:10 43:8
60:15
doctrine 49:24
75:21
documented
72:7
doing 12:15 16:7
32:13 43:5
53:9 61:1 62:3
62:3,23 64:21
Dole 19:4

dollars 16:8
74:21,24
DONALD 1:19
2:6 39:4
doomed 44:23
door 6:25
doubt 49:7 66:3
80:3
Draconian
27:12
drafted 57:15
drastic 74:18
driving 21:4
drove 22:16
drug 48:9,10
duty 49:5
dynamics 16:13
E
E 2:1 3:1,1
earlier 65:1,22
earn 39:18
echo 18:20
edit 9:25 10:6,19
10:23,25 12:6
effectively 36:16
61:1 66:5
effects 52:17
either 7:10
16:16 80:6
elaborate 7:15
elaboration 7:16
elected 64:14
electing 63:15
electronic 68:2,7
elegantly 57:15
eligibility 15:14
57:13
eligible 3:21,22
4:6,24 36:12
37:5 71:21,24
72:2 73:23
eliminates 9:16
eliminating
21:12
Elizabeth 9:23
9:25 10:6,19

10:19,22,24
11:3 12:6
emerged 58:6
empirical 25:6
employee 33:14
employer 33:16
33:17 79:7,13
employers 13:14
30:21 78:20,25
empty 31:22
35:21 80:11
enacted 55:9
enacts 54:15
encompass
26:13
encompasses
32:11
ended 32:25
78:15
English 7:11
10:11
English-speak...
26:16
enroll 36:17
71:5,18 78:7,8
enrolled 5:4
29:4
enrollment 32:8
36:25
ensue 54:12
ensure 32:12
46:21 67:25
68:13 78:18
entire 21:23
37:25 58:24
entirely 21:9
entitled 27:23
28:17
enunciated
33:12
envision 14:15
equivalence
14:9
equivalent 9:20
67:1
ESQ 1:17,19 2:3
2:6,9

Alderson Reporting Company

essential 24:17
essentially 34:25
38:8
establish 6:22
8:3,5,19 12:16
13:20 14:19,20
19:10 29:3
33:8 41:9
44:22 50:16,25
52:8 57:3 63:2
63:5,7,21,22
63:23 64:12,23
65:4,14,18
67:25 68:12
78:5
established 7:12
7:22,24 8:8,22
9:2,10,13 11:6
12:25 13:21
14:17 26:18
28:25 30:18
31:2 32:10
35:6,8,23
50:24 60:6,10
60:11,13,21,22
61:2,24 62:2,4
62:19,25 64:8
64:24 65:2
66:1,17 67:14
67:15 68:1,3,5
69:13 70:9,12
70:18 71:13
72:10 78:6,11
78:12 80:21
establishing 9:8
12:23,24 14:25
23:21 55:20
63:18
et 1:3,8 7:24
event 63:17
events 80:2
everybody 28:23
51:25
evidence 59:9,17
exact 46:6 67:14
exactly 29:7
32:22 60:14

Official - Subject to Final Review

65:23 74:9
examine 12:10
example 9:19
12:5 19:17
48:8 53:9 54:3
57:17
exception 39:22
39:25
exchange 7:12
7:21,22,23 8:2
8:4,6,6,7,11,11
8:19,23 9:2,8
11:6 12:14,25
13:20,21 14:16
14:20 16:16
20:12 21:22
22:8,11 23:24
28:13 29:3,5
31:2 32:6,9,19
32:23 33:4,9
33:11 35:3,6
36:2,3,3 50:16
52:8 54:5,5
55:21 57:4
60:12,13 62:4
62:19 63:3,9
63:19 64:7,12
64:16,16,18,18
64:19,23,24
65:2,2,4,7,8,9
65:12,14,16,16
65:18,24,25
66:14,15,16,17
66:21,22,23,25
67:1 68:1,3,4,5
68:6,16 69:13
69:22 70:8,8,9
70:12,13,15,18
70:22,23 71:2
71:5,11,13,13
71:14,18,24
72:9,11 78:11
80:13
exchanges 9:9
9:10 11:22
12:16,17 13:11
14:9,10,25

20:18,19 21:5
21:6,7 22:3
23:15 26:3,9
26:12,12,13,14
26:18,18 28:23
28:24 29:8
31:19,22 32:11
32:12 35:1,7,8
35:9,21 36:4,5
36:17 37:3
38:7,9,13,15
38:21 44:22
50:25 51:1,22
53:23 55:17,18
59:13 61:2,3,3
62:6 63:16
64:8 66:5
69:10 71:22
78:8,9,9 80:12
80:14,22,22,24
excludes 73:7
excuse 5:19
74:10
exemption 6:11
exemptions
78:18,20,21,25
exhibit 78:4
existence 55:16
exists 42:20
expand 33:18
expect 23:23
24:9 27:19
28:10 50:20
expected 24:22
expedited 57:16
experimented
22:17
explain 38:20
61:22 75:13
explaining
38:16
explanation
58:22 59:2,7
express 44:24,24
expressly 75:24
extent 49:21
extra 25:2 26:24

39:2
extraordinarily
33:22
F
face 73:16 77:21
facilitated 68:16
70:22
fact 35:2 40:4,4
40:15 41:3,20
41:20 66:22
69:20
fact-finding
4:16
factfinding 40:7
40:12
facts 4:2 43:2
factual 6:17
41:2
fail 44:23
failed 50:15
Fair 7:1
faithful 66:11
fall 13:11
fallback 19:22
fallbacks 59:14
false 76:8
familiar 19:17
favor 75:15
February 36:21
Federal 8:2
11:22 12:22
14:20 16:6,7,8
18:5 19:18,23
20:1 21:23
23:12 35:1,7,9
36:17 45:20,22
52:5 53:13
55:16,18 58:19
59:13 63:16,22
64:14 65:13,17
66:4,22 68:6
69:18,22 79:10
79:15
Federal-State
14:23 15:23
28:6

Federalism
16:13 55:24
56:4 75:19
77:11 79:9
Federalization
58:24
federally 46:3
68:16 70:21
figment 33:1
file 40:9 50:20
filed 39:19 51:8
51:14
Finance 58:9
find 23:23 24:9
29:10,14 37:6
43:1
findings 23:1
45:1
fine 27:1 68:18
finish 13:25
first 9:24 11:14
28:9 31:11,14
41:13 44:16
47:13,14,22
51:4 55:16
68:10 75:11
five 12:4,5,12
37:22 38:1
flexibility 37:1
44:25 56:21,22
56:23,25
flexible 19:21
floated 59:6
focus 64:5,5
70:5
follow 78:14
follows 36:6
44:16 79:21
forbidden 70:10
forces 44:22
form 56:1
former 26:21
formula 27:24
formulation
26:22
formulations
60:9

Alderson Reporting Company

forth 37:20
68:14
forward 52:9,21
found 23:22
32:15
four 3:19 12:4,5
37:16 39:14,18
44:11 77:14
fourth 6:9
frankly 58:12
69:16
free 16:8
freeze 32:19
33:5
front 51:22
frozen 32:24
33:8
fulfill 64:11
fulfilled 68:17
fulfilling 64:22
full 48:12
fully 18:7 23:9
30:7 56:10
function 10:20
65:8
fundamental
74:3
fundamentally
26:6
funding 16:1,10
19:4 78:13
79:20
funds 18:5 32:5
78:2
further 4:23
44:5
furthers 34:9
future 77:3
G
G 3:1
gather 72:19
gauntlet 45:17
general 1:19
26:15 31:19
37:17 39:2,4,6
41:1,14,24

Official - Subject to Final Review

42:14,24 43:3
43:9,16,19,25
44:4 45:12
46:10,15,18
47:1,6,12,20
48:7,19,25
49:17,20 50:11
50:17 51:3
52:11,22,25
53:8 54:2,18
54:21 55:4
56:3 57:24
58:25 59:3,6
60:18,20 61:8
61:13,15,18,25
62:5,12 63:24
64:2 65:20
66:16,24 67:16
67:19 68:8,23
69:2,23 71:6
71:19 72:12,21
73:5 74:9,23
75:5,10 76:16
76:24 77:7,13
78:3,15 80:9
generally 37:14
40:21
generous 33:22
geographical
62:20
getting 36:21
73:17
Ginsburg 3:13
4:9,13,19,23
5:6,9,18,20,23
6:4,7,19,21,24
7:5 19:1,13,16
20:13 23:25
24:3,4,8,13,15
24:19 25:1
27:15,18 40:24
43:7 54:1,4
give 26:3,24
30:22 37:1,10
54:2 68:24
given 10:22,22
38:3 44:6 50:8

73:6
gives 33:10 54:7
giving 35:11
78:20
glad 25:16
glaring 34:23
go 10:10 13:7,8
15:1 19:6 27:7
28:24 29:9
41:25 56:18
58:12 61:12
62:24 65:21
goals 26:8
gobbledygook
65:18,20
goes 27:14 51:9
61:18
going 5:11 7:14
10:8 11:18
14:22,24 15:4
15:11 22:1
23:10,11 25:3
27:5 29:9 30:5
30:15 31:12,19
33:20,21 35:12
35:21 37:20
38:12 44:5
49:10,20 52:9
52:21,25 53:12
53:15,20 54:10
54:17 55:5
57:3,25 62:21
62:21 64:4
69:12 73:9
74:13,14 75:3
77:3 80:11
good 11:16 48:8
51:24
gosh 10:13 52:6
gotten 52:6
government
3:21 4:10,12
5:6 6:8 7:7,23
12:22 14:20
16:6,7 17:3
18:11 20:19
22:9,24 23:12

28:6,20 31:16
32:18,25 45:20
56:7 58:20
63:9,22 65:14
65:17,17 69:25
75:12 77:22
79:10
government's
4:1 6:16 16:25
30:17 32:3
35:11 40:11
41:4 45:22
48:18 76:22
77:12
governs 70:1
grant-in-aid
19:18
great 11:11
greatly 78:3
guaranteed 15:8
36:8
guard 50:19
guess 28:20
42:16 43:9,10
43:25 51:3
gutted 38:8

head 79:20
health 1:7 3:21
4:7 5:5,16 18:5
35:3 40:20
63:2 67:9 70:6
70:10,11,11,15
70:24 71:1,9
71:10,15,15,16
71:24 73:23
80:18
hear 3:3 30:15
heard 25:11
hearing 58:11
hearings 23:13
heavy 27:11
held 42:10
help 18:5
helpful 79:8
helpless 79:15
HHS 9:7,13 11:6
13:20 14:16
23:15 26:13,17
31:18,22 32:11
32:12 35:21
36:5 38:7
44:22 54:8
60:13 63:18
H
64:13,15,15,20
half 27:16 28:21
65:7,25 67:15
28:22 29:25
68:4,13 78:5
happen 21:20
78:12 80:12,22
33:19,20 38:10
80:24
38:11 54:17
hiding 23:7
happens 21:21
highway 19:5
54:16
highways 19:6
hardship 6:11
hinges 66:22,24
6:11
66:24
harm 52:10,15
history 20:22
harmful 79:23
22:5,6,13
harmonious
23:17 25:8,8
37:18 46:22
38:18,23
harmoniously
hoc 25:7
38:6 75:17
hole 23:22
harmonize
Honor 7:1 8:18
47:24
17:24 18:14
harmony 67:8
24:11 25:16
harsh 33:9
29:22 40:18

Alderson Reporting Company

41:25 54:19
56:9 59:21
67:21 69:7,14
76:5 79:21
Honor's 50:2
59:11
hope 17:5
hour 19:6
huge 23:8
HUMAN 1:8
Hundreds 74:21
Hurst 3:24 4:3,5
5:8 7:4 40:19
77:18
hypothesizing
29:11
hypothetical
37:20 45:16,18
I
idea 24:16 50:8
53:18
identified 56:9
59:11
identify 41:18
75:8 78:7
ideological 3:17
ill 45:10,11
ill-conceived
45:11
ill-considered
45:11
illegal 36:10,11
37:3
imagination
33:1
immaterial 9:8
immediately
36:6 46:3
52:16,17 64:17
immersed 48:20
imperfection
57:21
imperfections
57:20
impinge 15:23
implement 30:4

Official - Subject to Final Review

69:5 76:1
implementation
19:25 20:1
24:5 56:8
implies 79:13
implore 12:10
important 11:24
51:9 53:17
73:22 75:18
impose 27:11
63:12 79:11
imposed 69:3
impossibilities
57:6
incarcerated
36:23 37:2
incentive 26:5
33:10
incentives 38:13
include 60:12
inclusive 63:8
incoherent
44:20
income 39:19,21
40:1,6 41:8
inconceivable
57:23
independently
22:11
Indiana 51:14
79:11
indicate 76:13
indication 44:8
indications
55:13,13
individual 5:14
6:1,11 22:24
22:25 23:4
24:6 27:22
31:24 35:5,5
36:1,7,22
57:13 62:14,16
62:17 67:9
70:7 71:4,18
71:23 72:18
individualist
34:24

individuals 29:4
31:18 35:4,24
36:12,15 70:16
70:17,23,25
71:21 72:5
78:22 79:13
80:9
ineffective 46:23
ineligible 72:3
inference 72:17
inferring 43:12
information
41:4
informed 30:7
infringe 73:11
injury 42:4
instructions
10:22,24 12:8
insurance 3:21
5:16 6:1,2
15:11,12 16:17
16:19 18:6
21:5,7 28:17
30:1 36:22,24
36:25 44:25
52:18 53:22
54:5 55:2
73:10,12,14,18
78:21
insure 79:12
insurers 15:6
20:15
intelligent 30:9
intend 51:13
intended 21:8
21:10,11 45:5
45:7
intending 26:17
intention 59:16
interest 70:16
70:24
interested 30:17
67:23
interface 32:8
68:2,7 69:22
69:24 70:1
interfering 19:9

Internal 74:19
75:2,7
interpret 14:7
17:15 18:12,13
27:10 35:23
48:5
interpretation
13:19 31:16,21
32:1,23 34:22
47:17 48:23
52:9 53:2,5
56:5 60:5 64:1
65:13 76:15
77:12 80:17
interpreted
17:14
interpreting
17:14 28:4
37:8,13
intervention
79:16
intruding 14:23
80:6
intrusive 79:18
invades 16:1
invading 16:9
invoke 49:19
involved 74:21
74:24
iota 66:2
irrelevant 6:13
irresolvable
74:4
IRS 4:4,25 5:3
5:15,17 30:6
38:11 51:11,12
75:24 76:2,6
isolation 46:19
issue 43:1 51:18
issued 68:13
issues 27:9
51:17
J
January 33:1
job 30:6
Joint 3:25 6:15

45:6,16 46:8
JR 39:4
46:11,17,25
judgment 40:10
47:2,8,15 48:1
76:19
48:19 49:1,10
June 5:11,13,21
49:13,18,21
5:22
50:11,18 51:4
jurisdiction 42:1
52:2,20,23
jurisdictions
50:23
53:1 54:1,3,9
54:24 55:6,23
Justice 1:20 3:3
56:3,20 57:14
3:8,13 4:9,13
57:24 58:18,25
4:19,23 5:1,6,9
5:18,20,23 6:4
59:1,4 60:4,19
61:5,11,14,16
6:7,19,21,24
61:20,21 62:9
7:5,14 8:13,16
62:25 63:20,25
8:20,24 9:4,12
64:3,25 65:10
9:15,18,21
65:21,22 66:13
10:13,15,18
66:20 67:12,17
11:7,10,16,16
67:22 68:19,20
11:17,20,23
68:24 69:17
12:13,19 13:2
71:3,16 72:8
13:11,22 14:1
72:16,22 73:2
14:5,11,12,14
74:7,10,10,16
15:1 16:3,12
75:1,6 76:12
16:24 17:2,7
76:24,25 77:13
17:11,18,22,25
77:17 78:14,15
18:7,15,18,20
79:3,8 80:4,19
19:1,3,13,16
80:25
20:13,21,24
21:3,13,17,19 justify 50:9
21:25 22:15,21
K
23:5,20,25
24:1,3,3,4,8,13 Kagan 9:12,15
9:18 10:13,15
24:15,15,19
10:18 11:16,17
25:1,5,10,14
11:20,23 20:21
25:21,23 26:23
20:24 21:3
27:2,7,15,18
24:1,15 25:21
28:9 29:1,12
25:24 27:2,7
30:14 31:12
28:9 29:12
34:1,3,6,14,18
34:1,3,6,14,18
34:20,21 35:13
34:20 35:13,16
35:16,18 36:2
35:18 36:13
36:13 37:6,13
37:13 38:5
38:5 39:1,7
45:16
40:24 41:11,14
Kennedy
16:12
41:22 42:9,21
16:24
17:2,8
43:1,3,7,14,17
17:25 18:7,15
43:21 44:2,6,9

Alderson Reporting Company

Official - Subject to Final Review

19:3 49:10,13
49:18,21 55:23
56:3,20 61:5
61:11,14,16,20
62:25 74:7,11
74:16 75:1,6
78:16
Kennedy's 79:8
key 11:4 26:1
38:4 39:11
40:16 44:11,15
kind 8:6 9:19
16:10 55:11
57:16 59:16
kinds 42:25
King 1:3 3:4
knew 14:8
know 3:15 13:12
13:16 20:17
24:1 29:4
33:13,23 36:10
40:2,3,3 42:17
43:5 44:2 45:9
50:6 54:14,21
63:6,10,12
65:19 67:21
70:2 72:23
74:12 77:4
knows 10:25

54:20
law 7:2 12:1
18:3 67:11
lawful 73:23,24
lawfully 71:1
lay 73:3
lead 58:21 67:10
learned 76:7
leave 19:19 20:9
Leevy 77:20
Left 18:24
legal 38:24
legislating 63:10
legislation 24:9
legislative 20:22
22:5,6,13
23:17 25:8,8
38:18,23 58:1
let's 15:1 23:19
27:7 67:22,23
level 49:23 74:3
74:6
Levy 7:4
liability 78:18
liable 39:14 40:4
40:15 41:3,17
41:20 42:2,3
42:19 43:11,23
43:23,24 44:12
life 9:19
L
lights 57:8
land 46:1
likes 33:17
language 3:11
limit 19:10
14:2,3 26:11
23:21
27:17 58:4,6,7 limitations
58:8,8 60:3,8
28:14 47:21
63:7 65:23
limited 38:17
66:2 70:19
78:17,17,19
78:10
limits 7:10 23:24
last-minute 58:5 line 18:4 54:3,8
late 5:13,22 52:7 lines 73:10
lauded 21:24
linguistically
Laughter 10:7
9:20
10:17 11:9,15 listen 10:1
14:13 17:4
literal 13:3
21:2 25:13,18 literalist 13:3,5
27:4 49:12
13:19

March 1:11
market 16:17
44:25
markets 52:19
markup 58:10
Mars 13:2
Maryland 13:16
30:23
massive 57:5
matched 40:6
materials 38:24
matter 1:13 19:4
41:2 42:12
53:18 72:3
matters 37:21
Mayo 76:10
mean 12:21
19:23 25:21
27:7,10,11,16
29:13 36:8,9
37:23 44:2
45:7,9 47:2,9,9
47:16 48:5,13
49:11 54:13,21
60:7,8 61:6
65:13,19 67:15
68:4 70:5
72:24 74:10
78:22
meaning 71:22
72:1,1 75:15
means 7:22
M
12:22 30:20,23
maintenance
31:1 32:10,22
32:17
35:5,9 36:8,24
Maintenance-...
38:15,25 47:19
62:7
48:3 63:14,21
making 5:3 18:4
65:15 66:13,15
28:21 50:3,22
66:16,21 68:4
68:6
72:22,22,24
mandate 5:14
78:12
6:1,12 22:24
meant 28:25
22:25 33:16,17
63:8
36:23 53:3
mechanism
79:7,13
21:20 55:24
mandated 16:18
61:2
manner 56:23
Medicaid 15:14

literally 35:23
litigated 39:16
litigation 34:17
80:16
little 14:14
26:25 61:20
75:7
live 72:6
lived 33:15
located 62:18
logic 31:22 37:7
logical 72:17
long 13:15 34:4
34:14,19 54:1
longer 42:20
73:25
look 4:14 8:1
12:15 14:1
29:6,13,16,20
36:13,13 37:15
37:15,16,25
48:9 51:16
59:25 62:6,14
Lord 48:4
lose 15:16 32:2
73:24 78:13
losing 32:5 78:2
78:2
lot 65:11
lots 50:12,13
lower 4:16,20

Alderson Reporting Company

15:17 16:1
17:9 18:1,2
19:17 20:7,8,9
21:22 23:18
24:23 30:24
32:2,5,7,17,19
33:5,8 62:6
68:11 69:3,24
78:2,13 79:23
79:23
Medicaid-eligi...
5:12
meet 63:16
64:14
memo 9:25 10:1
10:2,3,5,5,6,9
10:10,11,12,19
10:23,24 11:1
11:11,12 12:6
merits 7:9 40:23
44:15
message 57:10
met 68:16,20,20
69:1
MICHAEL 1:17
2:3,9 3:6 77:15
miles 19:6
million 55:1
millions 45:3
52:18 74:22
mind 66:3 67:21
minute 22:15
minutes 26:24
27:6 30:16
31:9,13 33:23
39:3 77:14
mockery 44:23
money 4:3 10:10
15:15,17 19:19
53:12
moneys 10:9
month 29:21
months 4:5 6:2
29:18 40:19
53:20
moot 77:22
mootness 42:16

Official - Subject to Final Review

morning 3:4
motion 40:9,11
41:23 42:11
mouse 23:22
mousetrap 23:8
N
N 2:1,1 3:1
names 9:23
national 59:14
naturally 26:13
Nebraska 51:14
necessary 22:25
46:13 59:24
71:22 75:25
need 22:11 76:5
76:17 78:12,16
78:18
needs 7:2 67:6
negotiated 59:23
neighboring
33:21
neither 34:9
36:11 37:5
Nelson 59:8,15
neon 57:8
never 4:12 15:24
16:25 20:2
30:23,24 33:18
never-ending
21:1
new 19:14 49:6
53:22,22
NF 16:5
NFIB 15:25 17:9
20:7 32:16
79:24,24
non-State 14:9
noncoercive
80:1
nonliteralist
13:19
normally 38:24
60:7
Northern 53:7,8
53:11
notably 14:4

notice 27:17
50:6,9,12
51:12 52:3
57:2
notion 30:11
76:8 78:5,11
novel 49:2,7,11
80:3
number 17:1
23:3 35:25
36:7 48:20
50:15,22 51:17
53:19,20 72:17
numerous 35:22
O
O 2:1 3:1
Obama 22:9
objective 55:13
59:22
obligated 15:6,6
obligation 4:14
68:11 69:21
obliged 5:25
31:21
observation
25:6
obvious 12:6
57:22
obviously 5:14
16:2 21:14
53:14 78:6
occur 54:6
odd 75:7
offer 9:18 21:6
offered 15:12
official 29:2
oh 14:25 16:3
33:13 34:19
52:5
Okay 7:5 9:23
23:9 27:1 54:7
Oklahoma
51:14
omitted 14:4
once 10:1 67:3
one's 21:25

passed 56:2
59:20
pattern 19:20,20
19:24,24
pay 13:14 16:18
payments 32:19
penalties 13:14
penalty 6:6
32:15 39:14
40:5,14,16
41:3,17,21
42:2,20 43:12
44:12 77:19
Pennhurst 52:3
people 4:21
13:15 16:17
18:4 22:2 23:3
52:18 55:1
58:22 72:2,3,4
72:5,6,13 73:7
78:7
perfect 32:9
36:19 37:1
perfectly 19:12
62:13 68:18
performing
10:20
period 28:23
36:25 60:22
person 12:14
P
13:2,16 26:17
P 3:1
31:1 40:25
page 2:2 4:1
62:18 72:9
65:6 71:11
73:7
Pages 59:25
personnel 79:16
pain 32:5
persons 70:17
pale 70:4
73:19
parallel 14:1
persuasive
part 15:7 26:1
37:11
29:23 39:17
Petitioner 55:11
72:8
Petitioners 1:4
participate 56:7
1:18 2:4,10 3:7
56:12
39:14,18 40:3
particular 37:16
40:9,9 41:5,8
47:17 62:20
43:13 45:17
67:3,5
48:22 49:14
pass 42:19
50:7,7 52:8
one-stop 22:8
onerous 50:4,4
55:11
ones 34:24 69:15
opening 6:25
operate 8:3,6
21:7 22:10
74:13,14
operated 21:10
operates 46:21
operating 54:8
operation 67:2
opinion 20:7
31:22 79:25
opportunity
39:10
opposed 58:19
62:5
opposite 56:24
option 59:12
oral 1:13 2:2,5
3:6 39:4 41:13
order 46:21 54:4
54:4 66:12
Orwellian 56:22
ought 58:2
oughtn't 38:1
outside 15:25
overnight 30:6

Alderson Reporting Company

53:2 56:23
65:6,8 77:16
phrase 9:4,6
23:7 26:18
31:6 60:6
62:10,22 67:14
71:22
phrases 14:8
26:12
pick 47:4
picking 45:15
Pipeline 53:7,8
53:12
place 23:22,23
27:19 28:9,13
29:13,16 56:10
64:4,5
placed 28:14
plain 3:11 7:11
10:11 16:22
64:21 78:10
plaintiff 3:15,16
6:9 7:2,4,4
43:11
plaintiffs 3:19
42:19
plan 15:12 19:25
20:1,2 29:5
57:2,7 67:9
70:6,10,11,11
70:15,24 71:5
71:9,11,15,15
71:16 80:18
plans 35:3 71:1
plausible 37:10
59:2
playing 20:8
please 3:9,14
24:14 25:22
39:7 44:14
plus 26:9 33:2
33:10
point 4:11,23
11:4,24 12:13
13:8 16:14
17:25 18:20,21
28:3,4 30:3

Official - Subject to Final Review

31:7,11,14,18
31:24,25 40:17
41:6 50:2 51:9
52:2,13 53:17
55:6 56:19
57:1,2 61:25
62:24 69:9
70:5 72:20
73:18,19,24
74:3 76:5
pointed 20:7
36:2 67:19
79:25 80:4
points 13:10
16:24 20:16
38:4 39:11
44:16 47:13
51:4 74:24
75:10
polar 56:24
police 16:2,6
policies 30:22
54:5 73:10
policy 30:21
72:3,19
pollutants 34:11
position 7:7 43:6
48:18 60:23
76:22 80:16
possession 41:4
41:5
possible 21:16
21:17 26:2
29:5 41:8
46:25 52:15
53:1
possibly 48:13
50:9 55:14
80:23
post 25:6
potential 9:17
poverty 18:4
power 16:2,7
powerful 16:14
49:25 56:17
powerless 33:3,6
practical 30:3

53:18
practices 79:16
precipitates
44:25
precisely 14:2
38:10 74:12
predicted 80:9
preference 38:8
preferred 56:6
prepared 49:3
prerogative 19:9
prerogatives
73:11
present 73:19
President 22:9
presumably
30:8
presumption
27:10 77:5
presupposes
69:11
pretty 37:25
prevail 16:21
31:20 35:20
38:25 80:10
prevents 58:23
58:23
previously 20:25
primary 15:21
principle 14:6
37:9 47:15,21
77:21 79:1
principles 37:2
75:18 77:11
printed 78:4
prior 22:22,23
64:17
prison 36:21
72:6 73:15,18
prisoner 36:14
prisoners 36:14
36:17 73:12,13
pristine 37:7
pro-Federalism
56:15
probably 77:2
problem 8:17

16:23 23:5,5
50:6 54:16
59:11 75:8,20
procedures
57:16 67:25
68:13 78:5
proceeding
51:15
process 58:1
produces 44:19
47:17
product 58:4,5,9
59:19
products 21:6
35:2
profound 50:5
program 15:7
19:21,23 21:23
22:1 52:5
programs 22:2
prohibition 71:9
projection 42:17
42:18
projections
39:17,20,24
40:1,6 41:7,15
promise 44:24
45:3
promote 46:24
promoted 56:4
proof 59:22
proper 53:15
69:22
proposed 51:12
proposition 18:9
prove 6:22
proves 69:8
provide 26:20
38:7 78:20
provided 55:18
77:6
provides 57:7
63:13
provision 7:9
12:7,15 14:1
14:15 17:13,19
24:4,5 29:14

29:17,25 32:18
32:22 34:13
35:24 36:11,14
46:1 47:17
48:3,12 57:12
58:23 59:4
60:12,14,21
62:1,7,14,16
62:17 68:14
71:3,8,17
72:19 73:16
77:9 79:25
provisions 18:23
22:18 23:20
32:3 44:17
45:10,25 46:19
46:23 47:25
48:20 59:23
67:3,5,10,13
67:17 72:18
public 58:11,11
purchase 71:21
71:24 72:9,19
purchases 23:24
purpose 22:16
26:7 32:18
33:12 67:1
purposes 24:25
29:18 34:10
38:22 53:22
57:13 60:16
66:1,23
pushed 57:15
put 3:17 27:8,19
27:20,21 28:12
28:19,21 51:12
56:10 64:5
putting 27:9
29:23 65:11
puzzle 60:4
Q
qualified 27:22
31:1,17,24
34:24 35:4,5
35:24 36:1,7,9
36:12,15 37:5

Alderson Reporting Company

62:14,16,17
67:9,9 70:6,6
70:10,11,15,16
70:17,22,24,25
71:1,4,9,10,15
71:16,18,21,23
71:25 72:1,5,9
72:18,22,23,25
73:2 80:9,18
qualifies 46:4
64:7,24 66:17
69:12
qualify 6:10
35:8 39:21,24
40:20 64:9,10
65:25
qualifying 66:25
question 3:14,22
6:10 10:4
11:25 12:20,21
17:6 18:10
27:3,8 34:21
39:12,13 40:16
41:12,17,19
42:5,6,8,9,16
44:11 45:8
48:21 49:3,8,9
49:22 55:5,7,8
57:25 58:3
74:14 76:3
80:4
questions 3:17
3:18 76:4
quickly 77:18
quite 17:7 19:2
22:6,10 23:18
24:2 38:15
48:16 51:9
58:1,2 70:7
73:8
quote 7:21,22
8:3,7 72:10
R
R 3:1
raise 43:4 77:24
raised 39:8

Official - Subject to Final Review

41:18 43:4
44:10 76:5
raises 18:10
raising 41:12
ratings 15:10
rational 26:16
26:20 49:15
read 7:16,20
13:4,6,13
14:21,22 15:22
24:16 29:9,9
30:8,12,12,18
31:5 46:18,19
46:20,20,22,23
47:1 48:11
49:25 50:6
67:5,6,15 68:3
68:4 70:19,20
73:1 74:5,15
76:21 77:4,8,8
77:9,10 78:16
78:19
reading 32:14
35:11 37:11
38:19 44:16,19
44:21,22 48:16
50:7 56:14,15
56:15,16 57:6
60:24 66:6,9
66:10 67:2,4
67:11 69:7
70:3 72:25
75:16 76:7
78:19,25 80:5
readings 47:4
reads 70:20
ready 54:6
realize 52:6
really 11:25
13:9 17:25
23:9 25:16
27:15 30:14,14
33:19 41:9
44:17 51:20
54:10 55:10
56:6 57:7 61:6
63:21 66:9

70:5 74:2
76:21
reason 21:6
26:20 43:19
45:13 49:25
56:17 64:10,24
73:22
reasonable 47:4
47:16 48:16
66:9 67:2,4
76:18
reasonably 47:9
reasons 7:3
12:12 28:9
56:8
REBUTTAL
2:8 77:15
receive 15:4
received 6:12
11:11
receiving 5:4
recitation 4:2
reconcile 47:25
record 41:7
77:25
reduce 23:3
53:16
refer 3:25 6:14
19:17
reference 30:19
62:20
referred 78:16
referring 64:17
71:17
refers 8:7
reflected 22:5
reflection 25:7
refutes 25:9
regard 13:25
regime 48:13
regulating 73:11
regulation 30:13
69:5
regulations
30:24 68:14,21
68:22 69:18,21
regulatory

48:13
reinforced 64:25
reject 56:17
related 19:11,12
56:19
relations 28:7
relationship
14:23 15:23
69:4
relevant 36:25
41:19 42:5,7
55:4,8 58:2,2
relief 77:19
remains 69:20
remember 37:8
50:3 51:10
render 46:23
replete 34:22
representation
43:18,22 44:7
require 28:5
required 59:8
64:16,17,18
requirement
63:12,14 64:11
64:22 66:18
69:5 79:12
requirements
15:14 32:4
63:16 64:14
68:17,21 69:2
requires 32:1
45:19 48:17
68:15 79:6
reside 70:18
72:10
residents 50:5
resides 35:6
62:18 73:7
resolve 75:14,14
76:20,20
resort 75:15
respect 6:18
36:1 37:22
39:12,20,23
40:17 41:6
42:6 45:18

47:12 50:2
51:7 58:3
62:15,16 71:8
73:12 75:11,23
80:13,24
respectfully
28:8
respond 12:13
25:25 48:21
80:12
Respondents
1:21 2:7 39:5
response 25:5
33:24 52:13
55:6
responses 30:17
responsible 68:6
rest 34:12 44:18
47:11,18
restriction 33:9
result 3:12
35:18 37:9,12
55:20 58:16
return 25:19
Returning 7:9
Revenue 74:19
75:2,7
reverse 23:6
revokes 45:3
rewrite 17:20
ride 61:19
right 5:25 24:2
29:19,24 32:20
33:4 34:20
37:15 41:23
61:11,17,19
63:24 64:3,4,5
67:22 72:12
74:10 76:12,13
rise 15:11 49:23
risky 20:6
ROBERTS 3:3
24:3 25:10,14
26:23 39:1
41:11,22 76:12
77:13 80:25
routine 16:10

Alderson Reporting Company

ruin 27:5
rule 4:4,25 5:15
38:11,22 46:14
46:15,16,20
51:11
rulemaking
51:12,15,16,23
rules 62:5
rump 44:22
run 10:15 26:3
58:20 72:15
running 38:13
53:24
S
S 2:1 3:1
saga 21:1
satisfied 63:15
63:15,17 69:6
satisfies 66:18
satisfy 66:17
savings 18:19
saying 11:24
13:19 14:16,22
16:8 27:15,25
37:4 38:12,15
39:19 40:24
44:1,4 47:3
51:12 60:12
61:1,5 62:3
66:5
says 4:25 7:11
7:21,23 8:1,5
9:10 12:14,16
12:17 17:19,23
19:18,20 20:3
26:2,11 27:12
27:20 32:10,25
35:3,4 36:1,11
36:14 45:20
47:19 56:20
60:15,21,22
62:17,25 63:1
63:4,20 64:13
64:16 65:1,3
67:24 68:10,12
69:9,11 70:14

Official - Subject to Final Review

71:4,20 72:20
73:14,16 78:4
78:7
Scalia 5:1 17:11
17:18,22 31:12
45:6 46:8,11
46:17,25 47:2
47:8,15 48:1
54:9,24 57:14
57:24 58:18,25
59:1,4 65:10
65:21 66:13,20
68:20,24 74:10
80:4
Scalia's 18:20
scenario 53:13
scheme 47:23
55:14
scintilla 20:12
22:12
scope 48:12
scrambling 58:6
second 11:18
44:20 55:22
56:18 61:25
secondly 47:25
secretary 1:7 8:3
8:5,10,19,22
12:22 31:3
section 7:13,20
9:7,11,14,17
11:4 26:1
34:11 35:2,4
36:5 38:5,8
44:18 56:20
57:12 60:23,25
62:2 63:1,1,13
63:13 64:11,19
64:22 65:2
66:1 67:24
70:8 72:8
75:23 76:1
80:14
sections 9:20
34:8
secure 32:8
59:24 68:2,7

see 31:13,13
51:16 58:14
60:1
seen 20:2
sell 20:15 70:9
selling 70:10
71:9
Senate 58:9
senator 23:12
59:8,15
senators 22:7
23:14 58:18
send 16:16 43:8
sense 10:11
25:15 28:3
32:9,20 33:3
36:18,19 37:1
37:14 44:18
46:6,9,10,12
54:7 55:17,17
56:22 67:7
72:4 73:3,13
sentence 34:19
sentences 34:6
34:15
serious 16:22
18:10 49:8,22
80:16
seriously 17:7
serve 4:8 40:21
served 4:7
service 4:6 75:2
services 1:8 4:8
5:5
set 8:2,10 10:21
21:19 25:2
51:21 53:23
55:10,15 59:12
61:3,3 63:9
64:7,15 65:25
65:25 66:15
69:10
sets 65:7,9
setting 34:25
68:14
setup 58:16
share 35:14

shoes 11:13
shop 10:16 73:9
shopping 22:8
short 4:7,8
63:18 79:21
show 48:15
55:25
shows 14:8
side 51:8 69:23
70:1,5
sides 18:9
sign 73:18
signed 50:21
51:1 52:5
significant
52:17 53:19
simple 9:19 12:4
simply 30:13
single 48:2 60:2
single-payer
58:21
sit 54:11
situation 47:22
50:4 55:11
sky-high 16:20
small 76:5
sold 71:2
Solicitor 1:19
26:15 31:19
78:3 80:9
solution 59:10
somebody 26:21
33:14 36:20
sorry 14:11
24:14 25:21
34:5
sort 9:19
Sotomayor
13:22 14:11,12
14:14 16:3
18:18 21:13,17
21:19,25 22:15
22:21 23:5,20
25:5 43:14,17
43:21 44:2,6
72:8 76:24
78:14 79:3

South 19:3
sovereignty 16:9
80:7
speak 28:6
specific 62:4,5
73:16 75:25
specifically 45:1
spend 4:3 5:16
spiral 15:5
16:17 22:14
spirals 23:1 45:1
spread 34:12
stake 3:16
stand 31:19 39:9
standard 49:19
standing 6:18,22
6:22 7:3,7 39:8
39:9,12,23,25
40:16,22,25
41:12,17 42:6
42:10,12 43:4
43:6,16 44:10
77:18
standpoint
16:13
start 39:8 45:14
State 7:12,24 8:2
8:8,11,22 9:2
9:10 11:22
12:18,23,24,25
13:21,22 14:3
14:17,18,19
16:2,9 19:7,9
19:18,21,25,25
26:19 28:25
29:2,3,11 30:7
30:19 31:3
32:4,7,7,10,11
32:13 33:11,15
35:6,8,23 36:4
38:9 44:25
45:19,21,23
46:2,5 50:5,16
50:24 51:1
52:4,7 55:20
56:6,6,7,13,21
56:21 57:3,10

Alderson Reporting Company

58:17 60:7,11
60:13,21,22,23
61:23 62:2,5
62:10,11,11,18
62:21,25 63:2
63:3,4,7,8,15
63:17,21,22
64:8,12,14,23
64:25 65:3,9
65:14,16,17,18
66:1,14,15,18
66:21,22,25
67:1,14,15,25
68:1,3,5,10,11
68:15,19,25
69:3,6,9,11,13
69:13,20,25
70:9,12,18,21
71:14 72:6,10
73:7,8,10,11
78:4,7,9,12
80:6,14,21
State's 69:23
State-by-State
59:13
State-establis...
26:14 29:5
32:6
State-run 26:9
stated 59:15
states 1:1,14
11:5 14:24
15:3,5,7,13,13
16:15 18:2,24
21:11,14 22:16
23:9 24:24
26:2,5 27:12
27:20 28:16,18
30:5,11,25
32:1,15,24
33:3,9,21
36:20 37:1
38:11,16 49:6
49:16 50:8,10
50:13,14,14,15
50:22,23,24,25
51:5,5,7,14,21

Official - Subject to Final Review

52:18 53:19,19
55:10,25 57:8
57:21 59:12
60:16 61:3
63:4 68:15
69:10,19 72:13
77:3 78:2,2,21
79:11,12,14,14
stating 3:20
status 42:7
44:24 73:23,24
statute 3:11 7:16
8:10,14 9:1
14:22 15:22
16:22 17:9
18:13 20:3
23:18 26:11
27:22 29:15,17
30:12 32:1,14
33:2 36:16
37:7,11,14
38:6,15,25
44:20 45:2,4,7
45:8,10,12,13
45:19 46:5,12
46:21 47:11,13
47:18 48:4
49:5 50:8 51:6
51:20,25 52:9
53:3,6 54:15
55:9 56:21,24
57:9,15 62:22
63:20 64:21
65:24 66:6,9
66:10 67:2,7
68:9,22 69:4,9
70:1,7,14,19
71:20 72:14,25
73:8 74:5,13
75:14,17,21,24
76:21 77:6
78:3 79:10,18
79:22 80:5
statute's 44:24
75:15
statutes 27:11
28:4 37:8 46:8

57:18 79:6
statutory 3:10
3:15 14:7
15:21 26:6
36:3 37:9 45:1
45:25 46:19,23
47:23 48:16
50:1 52:13
55:14,19 56:18
57:5 58:7,16
60:3 68:10,14
69:5 73:16
76:7 80:17
stay 22:2 53:3
stemming 31:15
step 44:5 74:18
76:17
stepped 11:13
stepping 63:18
steps 64:15
stop 79:15
story 25:15
straight-up
18:21
straightforward
3:10
strike 57:22
strong 38:8
76:17
stronger 12:12
strongest 26:2
structure 12:7
44:21 56:9
58:7
subclause 57:11
subject 5:14 6:5
33:16 55:10
77:19
submitted 50:22
50:23 81:1,3
subsection 29:18
29:19
subsequent
76:14,16
subsidies 5:4
7:10,11 9:10
15:4 16:19

20:18,20 21:4
21:8 22:1,12
22:13,18 23:2
23:3,11,15,21
23:24 24:16
26:4,7,8,17
27:23 28:18
29:8,10 32:20
32:24 33:4,11
36:12 38:7,17
51:21 58:16
66:4 74:21,24
78:16
subsidy 20:11
28:1
substitute 10:21
10:21 12:9
suffer 32:15
suggest 13:20
59:21
suggested 15:24
23:2 43:11
59:18 65:1
suggesting 22:13
37:24 42:22,24
77:22
suggests 12:8
55:19 59:7
summarize 31:8
39:10 44:15
summary 40:10
supplement
77:25
support 13:17
supporting
38:23
supports 31:5
75:12
suppose 19:5
62:12
supposed 10:25
10:25 55:20
65:7 66:14
Supreme 1:1,14
sure 15:6 18:11
53:8 57:9 68:6
69:21

surely 41:11
surplus 73:21
surprising 57:19
survive 22:19
SYLVIA 1:6
synonym 74:7
system 4:17 15:5
34:25 55:10
58:21 59:14

taxing 57:13
taxpayers 28:16
30:1 57:13
technical 27:24
30:19 73:4
technically 4:24
31:6
tell 15:18 26:16
28:16,17 30:1
31:20 35:12
T
80:10
T 2:1,1
telling 39:9
take 14:12 19:19
50:20 69:18
20:3,8 21:11
tells 8:10,19
25:3 26:24
24:5 40:18
50:7 67:22,23
51:24 64:12
76:23
ten 26:24 27:6
taken 54:1 60:7
39:2
76:22
tendentious
takes 5:23 54:16
80:16
talk 23:19 25:11 Tenth 63:11
26:25 34:23
66:12
talked 25:25
term 7:19,21
talking 8:17
15:21 73:3,4
9:21 15:2 23:6 terminology
34:3 36:4
8:25 9:1
51:11 54:25
terms 7:18 26:2
55:24 56:19
26:10,10 28:3
57:25 62:4,19
28:4 32:8
71:8 80:21
38:14 76:4,10
talks 29:15,17
77:8,9 78:1,1
29:21
79:7,8,20 80:8
task 38:13
80:8,18
tax 6:12,13 7:17 terrible 48:4
24:4 28:10,11 territorial 12:15
29:25 39:14
20:19
40:4,14,15
territories 12:16
41:3,17,21
60:15
42:2,19 43:11 text 37:15,16,25
44:12 52:15,24
44:17 48:15,17
53:3 58:8 76:6
50:1 60:25
76:7,11 77:1,3
64:21 66:11
77:5 78:18
74:3,6
79:7
textual 44:24
taxes 16:18
55:12,13 57:5
28:13 30:20
67:3,5 72:15
31:4
textually 20:17

Alderson Reporting Company

Official - Subject to Final Review

44:19 60:23
Thank 7:8 31:10
39:1,6 77:12
77:13,17 80:25
thankless 38:12
theirs 79:19
theoretically
54:22,22
theory 35:7,14
35:16 36:16
72:13 79:14,17
80:11
thesis 29:7
thing 12:23,24
12:24 23:8
24:19 25:2
27:9 32:25
34:24 46:6
47:9,10 48:3
58:20,24 64:6
things 17:3
22:10 47:5
think 4:19 5:10
6:9 9:19 11:24
13:4 15:20
17:1,2,25 18:8
24:1 25:3,20
29:12,13,16
32:11 33:25
34:2,18,18,20
34:23 36:20
37:18,24 38:4
39:11 40:20
41:19 42:4,6,7
42:16 44:10,15
45:14,15,21
47:20 48:7,7
48:15 49:1,3,6
49:7,24 50:1,2
50:14 51:9,24
52:14 53:17,24
54:10 55:2,12
56:4 58:1,2
60:24 61:9,9
61:13,15,18
63:24 64:2,3
65:21 67:20

69:8 70:2 72:4

73:5 74:9,17
75:12,20 76:16
76:20 77:2
79:8,21 80:15
thinks 53:15
third 57:1
thought 20:17
21:14,15 24:22
30:5 33:19,20
56:6 58:20
59:10
three 9:22 20:16
28:9,15 30:4
31:3 55:12
throw 45:17
thwarted 20:10
21:23
tighten 30:24
tightened 15:14
till 15:9
time 21:1 24:20
34:4 41:13
54:3,8,17
62:22
times 8:25 16:11
Title 59:24 60:1
tobacco 48:11
today 25:15 32:1
32:13 49:4
56:10 77:1
told 16:16 22:10
24:20,21 51:5
track 68:22
traditional
73:11
transport 34:8
treasury 27:25
53:13
treat 38:1
treated 12:17
14:3 36:15
treatise 76:8
trial 42:22
tried 31:7 41:18
55:15
tries 63:17

true 4:15 6:14

21:9 24:12
30:1 46:6
47:19 59:22
61:10
try 37:17 47:24
55:5 59:19
trying 17:7
26:21 29:2
55:6
turn 5:11,13,21
20:9,10 33:22
40:23 44:14
45:10
turns 8:21 39:13
twist 46:12
two 3:20 4:20
5:10 13:10
16:24 17:1
22:10 30:10
31:3,25 32:21
34:6,14 36:7
39:11 40:21
44:15 47:13
50:13 51:4
74:24 76:3,10
76:18 78:23
two-thirds 38:11
typical 19:23
U
U.S 18:23 77:24
U.S.C 28:12
67:24
ultimately 42:5
unable 30:12
unaffordability
39:22,25
unambiguous
71:13 79:1,2,6
unambiguously
48:11
unanimous 76:9
unconditional
26:3
unconstitutio...
15:19,20 17:8

17:10,15,20
18:22 49:4
unconstitutio...
17:12
unconstitutio...
32:16 48:23
undermined
26:6
undermines
38:22
understand 18:7
18:17 34:1
35:22 51:6
69:17 72:16
understanding
12:1 41:16
51:10 58:15,15
understood
23:10 51:20,25
undertake 38:12
undisputed 5:5
79:2
unilaterally
79:10
United 1:1,14
49:6 77:3
unlawfully 72:7
73:19
unqualified
72:23 73:20
unrealistic
53:25 65:13
unsupported
25:6
untoward 47:10
untrue 22:4
unusual 15:25
upheld 16:11
upset 50:19
upsetting 28:6
urging 63:4
use 13:15 14:2
26:18,21 35:25
56:23 60:8,9
uses 8:24 56:24
62:22
usual 5:2

Alderson Reporting Company

usually 13:3
52:4 57:18
Utility 34:10
utilizes 68:1
V
v 1:5 3:4 19:3
49:6
VA 40:20
valuable 20:11
22:7
values 56:4
variation 45:15
various 32:4
Verrilli 1:19 2:6
39:2,4,6 41:1
41:14,24 42:14
42:24 43:3,9
43:16,19,25
44:4 45:12
46:10,15,18
47:1,6,12,20
48:7,19,25
49:17,20 50:12
50:17 51:3
52:11,22,25
53:8 54:2,18
54:21 55:4
56:3 57:24
58:25 59:3,6
60:18,20 61:8
61:13,15,18,25
62:12 63:24
64:2 65:20
66:16,24 67:16
67:19 68:8,23
69:2,23 71:6
71:19 72:12,21
73:5 74:9,23
75:5,10 76:16
77:7
version 79:23
veteran 4:5
40:19 42:7
veteran's 5:5
veterans 3:22,23
4:6,21 40:17

Official - Subject to Final Review

view 28:3,4
78:17,19 79:22
76:19 79:9,18
80:6
79:22 80:15
we'll 3:3 16:16
vindicates 56:11
16:17 26:24
Virginia 13:15
53:23
30:21
we're 14:22 15:4
virtue 5:15,17
37:24 38:12
virus 34:12
51:11 56:10,19
visit 22:1
62:4 66:5
visited 56:13
78:19
votes 59:19,24
we've 25:10,25
48:6 75:19
W
weaker 13:9
Wait 22:15
Wednesday 1:11
walk 61:9
weeks 58:10,10
wall 72:15
weight 65:11
want 6:16 7:5
went 58:10
9:25 10:2 13:7 weren't 73:9
13:8 16:8
whatnot 55:2
18:21 19:14,22 whatsoever 59:9
26:2 30:14,15 Widespread
30:16,16 31:8
26:8
31:25 32:20
Will's 9:25
33:7 37:4
10:23 11:13
45:14 47:13
Williamson 48:8
57:9 58:13
48:9
60:6 70:5 71:7 willing 44:7
wanted 14:10
win 25:11 79:5
29:4 33:18
wisdom 56:1
38:21 58:22
wish 30:20 31:8
wants 69:14
women 5:10
Washington
word 22:14
1:10,17,20
34:11 56:22
wasn't 58:5
65:11 66:11,13
watch 58:13
71:25 72:1,25
way 10:16 13:4
words 7:18
13:6 14:8,21
10:20 12:4,5
15:19,20,22
12:11 16:22
17:14,14,15,16
18:16 30:18
29:19 38:1
37:16,22 38:1
44:18 50:1
38:21 46:13
51:6 59:10
work 20:18
62:8,13 63:24
24:20,22,23
64:3,5 65:5
29:8 34:11
67:6,7,8 70:19
38:6 44:20
70:20 73:1,6
48:14 62:3,3
74:5,13,15,20
62:23 74:5

1 33:1 40:15
41:2,16 43:22
1.36B-2(c)(ii)
4:25
10 4:5 30:16
31:9 40:19
10:09 1:15 3:2
11:34 81:2
1311 7:13,22,23
8:8,11 9:5,6,8
9:9,11,14 11:5
26:1 29:9
33:12 35:2
36:3,6 38:5,16
38:23 58:8
60:23,25 61:6
61:6,24 62:2
63:1 65:2,3
66:1,6 70:8
80:20,21
1311's 38:8
1311(b)(1) 63:1
63:14 64:11,19
64:22 65:3
66:11,19
1311(d)(2)(B)
71:11
1312 36:5 72:9
1321 8:1,1 9:8
14:4 20:3
X
28:22,24 29:9
x 1:2,9 59:24
29:24 36:6
60:1
56:20 58:9
61:7 63:13,13
Y
64:1,12 65:24
yeah 6:19 33:13
66:6
year 5:16,18 6:2 1326 21:13
16:4 27:16
1396w-3(h)(1)...
52:24 53:4,22
67:24
54:6
14-114 1:4 3:4
years 30:4 40:21 15 8:25
York 49:6
17 50:24
1970 4:6
Z
1st 6:3
0
2
2 39:20,23
1

75:17 78:22
workability
56:1
worked 62:13
68:17
worker 30:23
working 14:15
works 62:7 74:1
74:1
world 25:1
wouldn't 19:7
21:10,14 24:21
28:12 30:1
33:20 36:24
39:22,24 43:17
55:23 64:1
66:2,3 72:4
Wow 34:3
write 9:24 10:2
10:2,5,5,23
writes 10:9,10
10:12,24 11:4
writing 10:9
written 11:12
wrong 61:12
67:20 68:8,9
wrote 11:10,12
45:8,13,14
77:2

Alderson Reporting Company

2000 43:23
2010 55:9
2013 30:10
39:17 40:1
2014 33:1,3,7
39:15,19 40:2
40:2,6 41:3,10
42:2 43:23
77:20
2015 1:11 5:24
41:6,8 43:24
54:7 77:21
2016 54:6
22 18:2 51:5
65:6
23 50:23,23
26 4:25 15:8,9
3
3 2:4 15:13
3-year 33:5
34 15:12 30:24
32:1,13,14
50:14,21 72:13
78:2
35 19:6
36B 8:21 9:9
23:22 28:19,22
28:23,25 29:10
30:8 31:16,21
31:23 34:8
38:15,20 44:18
57:12 58:4,7
65:23 66:2
76:1
36B(g) 75:23
39 2:7
4
4 1:11 39:20
40:3,15 41:2
41:16,20 42:1
43:22
41 6:15
42 4:1 28:12
67:24

Official - Subject to Final Review

5
5 30:15 31:9,13
33:23
50 21:11 24:23
508 77:24
6
6 15:13 50:21,25
53:20
64a 32:3 78:4
65 5:11,13,21
66a 32:3
7
77 2:10
8
8 51:7
83 77:24
833 59:25
8a 71:12
9
9 6:2 15:13
924 60:1

Alderson Reporting Company

King v. Burwell Transcript
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