DJP Update 3-26-2012 Evening edition – SCOTUS hearing on PPACA: transcript & audio available on Web: http://t.co/jGh8fXsI or http://www.supremecourt.gov/
Below are EXCERPTS FROM 92 PAGE PDF TRANSCRIPT OF 3-26-2012 oral hearing SCOTUS re PPACA
You have to read the entire transcript or listen to the audio to get the proper context. The only purpose of these excerpts is to give you an idea of the Q & A. MUST BE READ IN CONTEXT. Excerpts merely give snapshots of a moment in time. Be assured that the Supreme Court will not take as long as the case in Dickens’ Jarndyce v. Jarndyce in Bleak House, but the effects of the decision will change America if mandate upheld as constitutional. The power for the federal government to regulate inactivity by forcing a citizen to buy something gives unlimited power to the federal government. Where does it stop?
As for today’s arguments, I believe the case will not be delayed under the claim of the Anti-Injunction Act. If I am correct, then the next question to be decided is the Individual Mandate. The argument about that is tomorrow, March 27.
Entire transcript as well as audio can be obtained at link in my tweet today or as mentioned above:
Donald Palmisano @DJPNEWS
Transcript & audio of today’s #SCOTUS hearing on #PPACA now posted: #tcot #tlot ##GOP #Dems #law #hcr
Here are the excerpts I selected for illustration purposes only.
Page 28 of 92 page PDF
ROBERT A. LONG, ESQ., Washington, D.C.; for Court-appointed amicus curiae to argue that Anti-Injunction Act applies (“invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation.” Words in quotes taken from page 77)
MR. LONG: Well, I would not argue that this statute is a perfect model of clarity, …
Page 29, Mr. Long again: …my main objection to the Solicitor General’s reading is I don’t think it makes a whole lot of sense.
Page 32
JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.
Page 40
GENERAL VERRILLI: Well –
JUSTICE SCALIA: You don’t want to let that bone go, right?
(Laughter.)
Page 47
JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress, that, to the extent that there is an exemption under the penalty, it’s an exemption from the legal obligation?
Page 48
JUSTICE ALITO: Subsection A says directly, “an applicable individual shall ensure that the individual has the minimum essential coverage.” And you are saying it doesn’t really mean that, that if you’re not subject to the penalty, you’re not under an obligation to maintain the minimum essential coverage?
GENERAL VERRILLI: That’s correct. And we think that is what Congress is saying, both in the provision I just pointed to, Your Honor, and by virtue of the fact — by virtue of the way the exemptions work. I just think that’s the — reading this in context, that is the stronger reading of the statute.
Page 53
GENERAL VERRILLI: That’s the essence of it. They called it a penalty. They didn’t give any other textural instruction in the Affordable Care Act or in the Internal Revenue Code that that penalty should be treated as a tax –
Continued on to Page 54
CHIEF JUSTICE ROBERTS: Well, except you –
GENERAL VERRILLI: — for Anti-Injunction Act purposes.
Page 55
JUSTICE ALITO: Two former — two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they wrong on that?
GENERAL VERRILLI: Yes. We don’t — you know — we’ve taken this position after very careful consideration, and we’ve assessed the institutional interests of the United States, and we think we’re in the right place.
Page 56
CHIEF JUSTICE ROBERTS: Mr. Katsas.
ORAL ARGUMENT OF GREGORY G. KATSAS ON BEHALF OF THE RESPONDENTS
MR. KATSAS: Mr. Chief Justice, and may it please the Court: Let me begin with the question whether the Anti-Injunction Act is jurisdictional.
Justice Ginsburg, for reasons you suggested, we think the text of the Anti-Injunction Act is indistinguishable from the text of the statute that was unanimously held to be non-jurisdictional in Reed Elsevier. That statute said no suit shall be instituted. This statute says no suit shall be maintained. No –
JUSTICE GINSBURG: They are different things.
JUSTICE SOTOMAYOR: Big difference, though –
Page 65
MR. KATSAS: I don’t think so, Justice Kagan, because we have an adversarial system, not an inquisitorial one. The parties maintain their lawsuits, I think, is the more natural way of thinking of it.
If I could turn — if I could turn to the merits question on the AIA before my time runs out.
The purpose of this lawsuit is to challenge a requirement — a Federal requirement to buy health insurance. That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn’t apply.
What the amicus effectively seeks to do is extend the Anti-Injunction Act, not just to taxes which is how the statute is written, but to free-standing nontax legal duties. And it’s just –
Page 66
CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime.
Page 66 continued:
MR. KATSAS: I’m not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
They are put in separate sections. The mandate is described as a “legal requirement” no fewer than 20 times, three times in the operative text and 17 times in the findings. It’s imposed through use of a mandatory verb “shall.” The requirement is very well defined in the statute, so it can’t be sloughed off as a general exhortation, and it’s backed up by a penalty.
Congress then separated out mandate exceptions from penalty exceptions. It defined one category of people not subject to the mandate. One would think those are the category of people as to whom
Continue on page 67
Congress is saying: You need not follow this law. It then defined a separate category of people not subject to the penalty, but subject to the mandate. I don’t know what that could mean other than –
Page 70
JUSTICE KAGAN: But that does seem odd, to suggest that the State is being injured because people who could show up tomorrow with or without this law will — will show up in greater numbers. I mean, presumably the State wants to cover people whom it has declared eligible for this benefit.
MR. KATSAS: They — they could, but they don’t. What the State wants to do is make Medicaid available to all who are eligible and choose to obtain it. And in any event –
JUSTICE GINSBURG: Why would somebody not choose to obtain it? Why — that’s one puzzle to me. There’s this category of people who are Medicaid eligible; Medicaid doesn’t cost them anything. Why
Continue on page 71
would they resist enrolling?
MR. KATSAS: I — I don’t know, Justice Ginsburg. All I know is that the difference between current enrollees and people who could enroll but have not is, as I said, on the — is a $600 million delta. And –
Page 77
CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.
MR. LONG: Thank you.
CHIEF JUSTICE ROBERTS: We will continue argument in this case tomorrow.
(Whereupon, at 11:41 a.m., the case in the above-entitled matter was submitted.)
———
Stay well.
Donald
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Donald J. Palmisano, MD, JD
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