SPECIAL IN THEIR LIVES.
>> THANK YOU, SENATOR.
>> YOU’RE WELCOME.
>> YESTERDAY YOU SPOKE OF
CALIFORNIA V. TEXAS, THE CURRENT
CASE SEEKING TO STRIKE DOWN THE
AFFORDABLE CARE ACT.
YOU SAID, I THINK, THAT THE
ISSUE BEFORE THE COURT IS
SEVERABILITY.
MEANING WHETHER THE COURT CAN
STILL UPHOLD THE AFFORDABLE CARE
ACT, IF IT RULES THAT THE
INDIVIDUAL MANDATE IS
UNCONSTITUTIONAL.
AND YOU SAID YEDSTERDAY THIS
QUESTION WAS NOT BEFORE THE
COURT.
AS I UNDERSTAND THIS, CHIEF
JUSTICE ROBERTS AND THE MAJORITY
DID INVOLVE THE ISSUE OF SEVER
ACT IN A CASE KNOWN AS THE NIFB
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS V.
SEBELIUS.
THEIR THE CHIEF JUSTICE AND 5-4
MAJORITY THAT INCLUDED JUSTICE
GINSBURG STRUCK DOWN ONE PART OF
THE LAW.
THE MEDICAID EXPANSION
PROVISION, BUT ALLOWED THE REST
OF THE LAW TO STAND, BECAUSE
THEY FOUND IT WAS SEVERABLE FROM
THE PORTION THEY STRUCK DOWN.
JUSTICE SCALIA DISSENTED FROM
THIS CONCLUSION STATED THAT "THE
UNCONSTITUTIONALITY OF THE
INDIVIDUAL MANDATE AND THE
MEDICAID EXPANSION REQUIRES THE
INVALIDATION OF THE AFFORDABLE
CARE ACT’S OTHER PROVISIONS."
IN OTHER WORDS, THE JUSTICE
BELIEVED THAT THE LAW WAS NOT
SEVERABLE AND THE ENTIRE LAW HAD
TO BE STRUCK DOWN, INCLUDING
PROVISIONS PROTECTING PEOPLE
WITH PRE-EXISTING CONDITIONS.
YOU HAVE BEEN CLOSE TO THE
JUSTICES PHILOSOPHY, AND IN
THESE HEARINGS YOU’VE ALSO SAID
THAT THIS DOESN’T MEAN YOU WOULD
REACH ALL THE SAME CONCLUSIONS.
SO CAN YOU EXPLAIN TO US TODAY
HOW YOU WOULD DISAGREE OR AGREE
WITH JUSTICE SCALIA’S VIEW OF
SEVERABILITY IN THAT NIFB,
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS CASE?
>> WHAT I THINK I CAN SAY
WITHOUT EXPRESSING DISAGREEMENT
OR AGREEMENT FOR THE REASONS I
SAID YESTERDAY, NOT BEING ABLE
TO GRADE PRECEDENCE, THE
SEVERABILITY ISSUE, FIRST OF
ALL, MAJORITY HOLDING AS YOU
RECOGNIZED, WAS THAT EVEN THOUGH
THE MEDICAID PROVISION WAS
UNCONSTITUTIONAL IT WAS
SEVERABLE.
SO JUSTICE SCALIA EXPRESSED HIS
VIEW AND DISSENT EVEN BY JUSTICE
SCALIA’S VIEW THE ISSUE WOULD BE
DIFFERENT IN CALIFORNIA VERSUS
TEXAS FOR TWO REASONS.
ONE, JUSTICE SCALIA THOUGHT TWO
PROVISIONS OF THE CONSTITUTION
WERE UNCONSTITUTIONAL.
IF YOU PICTURE SEVERABILITY
BEING LIKE A "JENGA" GAME, PULL
IT OUT, CAN YOU PULL IT OUT
WHILE IT ALL STANDS?
IF YOU PULL TWO OUT, WILL IT
STILL STAND?
SO JUSTICE SCALIA, HIS VIEW IF
YOU PULLED THOSE TWO PROVISIONS
OUT, COULD IT STILL STAND AND
HERE WE’RE TALKING ABOUT ONE AND
ALSO CONGRESS AMENDED THE
STATUTE SINCE NIFB VERSUS
SEBELIUS AND CALIFORNIA VERSUS
TEXAS INVOLVES A DIFFERENT
PROVISION BECAUSE OF THE ZEROING
OUT THAT WAS DONE BY AMENDMENT.
SO THAT’S HOW THE TWO CASES
PRESENT SLIGHTLY DIFFERENT
ISSUE, WHAVGTSISSUE
ISSUES.
>> WHAT DO YOU THINK OF ALL
THAT?
>> WHAT DO I THINK OF -- ISHGTS
SEVERABILITY?
>> IN THAT INSTANCE?
>> I THINK THE DOCTRINE OF
SEVERABILITY DESCRIBED BY THE
COURT SERVES A VALUABLE FUNCTION
OF TRYING FLOT TO INGING NOT TO
WHEN YOU WOULDN’T WANT A COURT TO UNDO YOUR WORK.
TO UNDO YOUR WORK.
STRIVES TO TOOK A STRACHTATUTE,
PULLING IT OUTS LIKE IN JENGA,
WOULDN’T WANT IT ANYMORE.
SEVERABILITY IS DESIGNED TO SAY,
WELL, WOULD CONGRESS STILL WANT
THE STATUTE TO STAND EVEN WITH
THIS PROVISION GONE?
WOULD CONGRESS STILL PASSED THE
SAME STATUTE WITHOUT IT?