tv Key Capitol Hill Hearings CSPAN June 26, 2015 3:00am-5:01am EDT
t establish. >> i think the right way -- >> and if that were the correct interpretation, you wouldn't 1321 at all. >> 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. the right place to focus 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. and the reason they qualify is because they fulfill the requirement in section 1311(b)(1) that each state shall establish an exchange. and 1321 tells you 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. it says such exchange, which is 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). so it has to be 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 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. >> well, you're putting a lot of weight on the on the one word, such, such exchange. such it seems to me the most unrealistic interpretation of "such" to mean the federal government shall establish a state exchange.
rather, it seems to me "such" means an exchange for the state rather than an exchange of the state. how can the government federal government establish a state exchange. that is gobbledygook. you know, "such" must mean something different. >> it isn't gobbledygook, justice scalia. and i think about it and i go back to something that justice alito asked earlier. and 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 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. and what we're saying is that effectively reading 1311 and 1321 together, that is what the statute does. 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 -- >> the word "such" means not just the exchange that the state was supposed to set up, but it means the state exchange. >> it means an exchange that qualifies as satisfy as an exchange established by the state because it satisfies the requirement of 1311(b)(1). >> no. you have to say it means the state exchange. you have to your case hinges on the fact that a federal exchange is a state exchange for purposes -- >> it hinges on it hinges on it qualifying as the state exchange or being equivalent to the state exchange for the purpose of the operation of the statute. that is a reasonable reading 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. it is the only way to bring it into harmony with the act's qualified individual and qualified health plan provisions which do lead to what they admit is an absurdity under their reading under the law. >> 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? >> i don't -- >> there are some provisions like that. >> 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. >> all right. well, let's take one let's take one. i'd be interested in your answer to it. 42 u.s.c. section 1396w3( h)(1)(d) which says that each state shall establish procedures to ensure that an exchange established by the state utilizes a secure electronic interface. and they say that if that 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. >> yes. they're just wrong about that. 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. what it says is they shall establish procedures to ensure the coordination. hhs has issued regulations setting forth what that statutory provision requires of states in those circumstance. every state where there is a federally facilitated exchange has met the requirements and fulfilled them, and it worked perfectly fine. there's no anomaly there at all. >> and the state -- >> it met it met the requirements of the regulations you say, but do the regulations track the statute? >> yes, they do. >> do they give the state authority to say whether or not these these conditions have been met? >> they the requirements are imposed on the state medicaid and chip end of the relationship.
that's what the statute does, and the regulation to implement that statutory requirement, and it's satisfied in every state. 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. it says each state shall. it presupposes that there is going to be something that qualifies as an exchange established by the state in every state. so 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. >> 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. but the fact remains that the state has some obligation under the regulations to make sure that there is a proper interface with the federal exchange. >> on the state's side of the interface, yes. but that's the chip and medicaid agencies. those are state government agencies, and it's 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. i mean, i really do want to focus on this point 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 a qualified health plan. it is forbidden from selling a health plan that is not a qualified health plan. and that's not an exchange established by the state. it is an exchange. 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. so 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. therefore, the exchange cannot certify a qualified health plan as being in the interest of qualified individuals because there aren't any, so there aren't any qualified health plans that can lawfully be sold on the exchange. >> what is the provision that says that only a only a qualified individual can be can enroll in a plan under an exchange? >> so let the i will address
that, but i just want to make clear the provision i'm talking about with respect to the prohibition on selling a qualified health plan to anybody 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. it's absolutely unambiguous. an exchange, not an exchange established by the state, an exchange may not make available any health plan that is not a qualified health plan. 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? >> well, i what they 20 what the statute says throughout is 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 meaning. the whole the meaning of the word qualified is to distinguish between people who are eligible and people who are ineligible. and as a policy matter, it wouldn't make any sense because think of the people who are not qualified individuals. the people who don't live in the state, the people in prison, and they're unlawfully documented. >> this is part of section 1312. a person qualified to purchase on an exchange must, quote reside in the state that established the exchange. >> right. and there are no such people in 34 states under mr. carvin's theory of the statute. so it just doesn't it just you just run into a textual brick wall. >> 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.
>> it's well, that's what qualified means, justice alito. it means that, you know, if you're not qualified, you're unqualified. and so, i mean, that's what it means. and so you're just reading the word "qualified" out of the statute if you read it that way. >> "qualified" is used in the in the lay sense of the term, it's not a technical term here. >> well, i think -- well, given the way it's defined, it's defined as a person who resides in the state. it excludes people out of state. it does that because the statute was quite clear that you weren't going to be allowed to shop for insurance policies across state lines because that would infringe on traditional state prerogatives regulating insurance. and it and with respect to prisoners, it doesn't make any sense to say that prisoners should be able to get insurance. mr. carvin says, yes, it does because they get out of prison. well, there's a 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. he 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. so, just none of that 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. you have, at the level of text -- >> is that a synonym for ambiguity? >> i think so, exactly right justice scalia i mean, excuse me, justice kennedy that you have ambiguity there 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. and when you read it their way, you 16 >> well, if it's if it's ambiguous, then we think about chevron. but it seems to 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? hundreds of millions? >> yes, there are billions of dollars of subsidies involved here. but two points about that -- >> and 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. >> so -- >> and it seems to me a little odd that the director of internal revenue didn't identify this problem if it's ambiguous and advise congress it was. >> so a few points about that with respect to chevron deference. first, we do think chevron deference clearly supports the government here and i'll explain why. but before you get to that, you can resolve and should resolve this statute and the statute's meaning in our favor even without resort to chevron deference. that's what the canon of reading a statute as a whole to make it work harmoniously directs you to do.
it's what the very important principles of federalism that we've been describing here direct you to do. if you think there's a constitutional problem with the statute, it's what the doctrine of constitutional avoidance directs you to do. 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 implement section 36b. so you don't have any ambiguity. congress said the irs should do this. it is a big question, but as the court said in city of arlington two terms ago, chevron applies to big questions as well as small. your honor raised this point about the need for clarity 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. and it is certainly not consistent with this court's unanimous decision in mayo two terms ago that chevron applies to the tax code like anything else. and so --
>> if you're right about chevron, that would indicate that a subsequent administration could change that interpretation? >> i think a subsequent administration would need a very strong case under step two of the chevron analysis that was a reasonable judgment in view of the disruptive consequences. so as 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 -- >> general -- >> if there are any if there 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. >> you should you should read it according to its terms. and when you read this provision according to its terms and you read it in context and you read it against the background principles of federalism, you have to affirm the government's interpretation. thank you. >> thank you, general.
four minutes, mr. carvin. >> thank you, mr. chief justice. very quickly on standing. mr. hurst would be subject to a penalty absent relief by this court for 2014. as i've discussed, both he and mrs. leevy, of course, would face the same principle for 2015. if the 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. 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. it says, "a state shall establish procedures," so the notion that hhs established them is obviously contrary to that. it says, "the state will identify people to enroll on their exchanges." well, they can't enroll anybody on their exchanges if there are no such exchanges in the state. 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. >> could i follow up on something the general ended with, which and justice kennedy referred to, which is the need to read subsidies limited. but so is in a limited way. but so is the need to ensure that exemptions from tax liability are read in a limited way. and under your reading, we're giving more exemptions to employers not to provide insurance, more exemptions to states and others or to individuals, how does that work? i mean, you've got two competing -- >> no, no. you do get more exemptions for employers under our reading, but and the same principle applies. is it unambiguous? it's undisputed that one is unambiguous. >> 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. in terms of the employer mandate, i think that's very helpful in terms of justice kennedy's concern about federalism. 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. it implies the employer mandate to states. so their under their theory, the 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. so actually, the more intrusive view of the statute is theirs. 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 something that was an acceptable noncoercive alternative. but in all events, even if there's a constitutional doubt under a novel constitutional question, as justice scalia pointed out, there's no alternative reading of the statute that avoids that because either way, you're intruding on state sovereignty. 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. nor did he even respond to my argument that with respect to an exchange under the definitional section only applies to state exchanges. so i think we can view this as a complete tendentious litigation position and not a serious statutory interpretation. 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.
it has no application to hhs exchanges, therefore, it can't possibly create an anomaly with respect to those hhs exchanges. >> thank you, counsel. the case is submitted. we will also take your calls, facebook comments, and tweets on the decision. live every morning at 7 a.m. eastern on c-span. >> here are some of our featured programs this weekend. saturday night we will look at the government and culture of iran its relationship with the u.s., and nuclear ambitions.
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and hear from the crew and government officials. get a complete schedule at www.c-span.org. >> the supreme court handed down a decision on the fair housing act. it ruled housing discrimination does not have to be intentional to be illegal. here is the court after the decision was announced. >> as many of us take the tearful journey to attend the funeral, i cannot think of a better day to reaffirm the fair housing act. this came from the state of texas and threaten to upend an unfair interpretation of the fair housing act.
it was passed as cities all over the country burned because our leaders recognized the dangers of segregation. today the supreme court upheld the disparate impact principle. this is an essential tool because it allows us to get that not just explicit discrimination in which homeowners or others refuse to rent or sell homes to grateful minorities, but it also allowed us to get the policies and practices that perpetuate segregation created by the federal government and maintained for so many decades. this statute is essential in the hope america can become one america. anybody who has been paying attention the last week knows we could no longer afford to live the way we have as separate bifurcated parts of the country. today the supreme court recognized the unbroken line of
interpretation by congress in amending the fair housing act and maintaining disparate impact standards and by the department of housing and urban development, the agency that also has affirmed the disparate impact. today is an encouraging day in the supreme court. it means those of us that work to try to end housing segregation in this country will have one of the most important tools in our disposal. we will redouble our efforts to do that. i am the president and director counsel of the in aa cp fun. we are engaged deeply with civil rights statutes that are essential tools to try and break down racial barriers and promote racial justice.
today the supreme court has reaffirmed the vitality of one of the most important tools under the fair housing act. thank you. >> the supreme court ruled 5-4 that housing policies that have discriminatory outcomes can be challenged under the fair housing act, even if there was no intent to discriminate. this comes from efforts to reward tax credits for low income housing in dallas. the oral argument took place in january. >> we will hear arguments first this morning. the texas department of housing and community affairs versus the communities project. >> thank you. may it please the court. the fair housing act recognizes the impact claims, because the
tax does not use results-based language. when a statute prohibits actions because of race, the statute is limited. the canon of constitutional avoidance propels the interpretation. smith versus the city of jackson represents this phrase. >> we recognize they apply. >> at the time the words were not used. however, disparate was used. disparate impact liability was based on the phrase adverse effect. >> it says to refuse to sell or
otherwise make unavailable. the agency charged with interpreting that language has determined it means disparate impact. >> the phrase make unavailable is an act prohibited by the fair housing act. >> if it happens to be that is what you do with housing, but it's a consequence. >> the act of making unavailable a dwelling is prohibited. this is like section 4a1. otherwise making unavailable or denying. they are all active verbs.
it is to cover land-use restrictions that are not refusals or outright denials. that is why the language focuses on actions. >> that is an active verb. also, you had to adversely affect by discriminating. the points you make are true enough. they were also true with respect to title vii. >> i don't believe so. the section bans the act of limiting segregating and classifying. that they check for a certain result, something which would tend to deprive for adversely affect. the results are checking language that gave rise to
disparate impact. >> on the basis of race, sexed. it adversely affects on the basis of the category. >> that was the interpretation the concurrence came to. section 481 the phrase appears. you have active verbs. the court was unanimous in finding the section only required discrimination. >> did you take into account they deal with a grand goal congress had in mind. it meant to undo generations of discrimination.
its objective was to replace ghettos with integrated living patterns just as title vii was meant to undo the legacy. doesn't that give a clue >> justice ginsburg, the court needs to focus on the plaintext. unlike title vii, unlike the adea, both of which included the phrase "adversely affect," when congress passed the fair housing act, it didn't use that language. instead it prohibited making , unavailable a dwelling to any person because of race. in common language, if you were to say "adam made unavailable a dwelling to bob because of race," you ask, why did adam act? he acted because of race. race was the reason for the action. >> if i understand your point,
you agree with justice scalia. they are both verbs. make unavailable is just one way to adversely affect. your argument is on these extra added words in the title vii statute, right? in the title vii statute, it is -- couldn't find them. you know what i meant. [laughter] >> i do, justice kagan. >> but i don't think that could possibly be right. then you say that it would be a different statute. instead of just saying an employer can't make unavailable instead it said an employer can't act in a way that makes unavailable, that would make it completely parallel to the title
vii and the adea statutes. those two things just can't mean the same thing. all that's doing is to take out a few words. it is saying the exact same thing, either way an employer can't make unavailable. >> i don't think it is saying the same thing. section 4-a-1, the court unanimously recognized, didn't give disparate impact liability. it didn't have, checking to see if it would adversely affect. without that results-based language, you can't have disparate impact liability. >> the thing that is different in this statute is the "make unavailable," whciich focuses on the effect. it just doesn't a little more economically. the effects based nature is still the same. >> it doesn't focus on the effect. what smith said was, prohibited
the act of eliminating. smith said that is not simply what it was prohibiting. it checked to see if there was a deprivation, or something intended to deprive. that was the effects-based language. it wasn't merely dropping in a phrase such as "make unavailable." here, congress chose active verbs. meyer versus holly recognized, the fair housing act focuses on prohibitive acts. >> "make unavailable" is not the same language as "adversely affect her go that is all i'm willing to concede. i think, if you tht that smith was wrong, which many people do, i suppose you could argue, we will not expand smith. smith hung on particular words "adversely affect." those words don't exist here.
therefore, since we think smith was wrong anyway, we are not going to extend it. that is a reasonable argument but that is not the argument you are making. what hangs me up is not so much that as it is the fact that congress seemingly acknowledged the effects test in later legislation. it said that certain efax will not qualify -- effects will not qualify. do you know what i am referring to? >> yes, justice scalia. >> why doesn't that kill your case? when we look at a provisional law, we look at the entire provision of law, including later amendments. we try to make sense of the law as a whole. you see this statute, which has otherwise, "make unavailable." it also has, "however, it will not be a violation if these effects --"
you read those together and you say wow, this law must mean this. >> justice scalia, the 1988 amendments merely restricted liability. the court rejected identical arguments in global the versus united states. >> is this in your brief? >> the case was not cited in our brief. >> i am sorry. >> in page 89 of that decision the court noted that congress may have wanted to clarify the matter in respect to the narrow exemption, but leave the law where it found it in respect to the broader issue. >> where it found it? it was very clear. 10 circuits had gone the other way and said that disparate impact was a valid action under the fha. leaving the law where you found it, and we presume that congress
knows the law, especially when the law is that clear in uniform, means there will be disparate impact actions except in these three circumstances which we are going to lay out for you very clearly. >> justice kagan, in 1988, the state of the law was in flux. the solicitor general filed a brief in this court saying the fair housing act only prohibited acts of discrimination. two months before, this court decided and emphasized that the phrase "adversely affect" was the language that gave rise to the impact liability. if congress was assumed to have known that the presidents was in place -- >> how do you interpret "adversely affect? " they have to write it, "otherwise adversely affect someone by making housing unavailable? " it is a little crazy, don't you think? otherwise, adversely affecting someone by making it
unavailable? there is a shortened form of that. >> otherwise limit housing opportunities in a way that would adversely affect -- congress couldn't use the same language that appeared in title vii. >> instead what it did was take a body of law, some of which had held some practices as disparately impacting, like drug addiction and others. two others. it said, no, those three will not count. your reading of those three exemptions is, they were unnecessary. >> they were absolutely doing work in 1988. congress can take account -- >> what do you make of 1988, where someone wanted to do away with disparate impact and congress didn't take up that invitation? >> i believe you are referring to representative swindle.
his amendment. the mere fact that congress didn't create a provision. >> you are telling us that these amendments, which said that certain types of effect will not qualify, the purpose of that amendment was to prevent erroneous decisions from affecting those particular areas? >> justice scalia -- >> a very strange thing for congress to do, to believe those court of appeals opinions are wrong, and yet to an act these exemptions. even though those opinions are wrong, they will not apply to these things. that is very strange. >> in 1988, when congress was legislating, it agreed on one thing. that was, in these three circumstances, liability would be restricted. it would be odd to read into a restriction of liability a
recognition of a massive expansion of liability. congress does not hide elephants in mouse holes. >> exactly. 10th circuit has already said there was disparate impact. if they didn't like the disparate impact analysis, they would have taken up the congressman's proposal. but, they did not. >> in the brief filed in 1988, it made the point which is the same today. which is congress knows how to enact -- >> changed when? when 1988 happened, the solicitor general changed its position. it has been consistent since then. when congress adopted the three exemptions, it recognized disparate impact as applying to the fair housing act. that intentional brief was not in 1988, and not in -- that was before 1988.
the 1988 amendment. >> it was before the 1988 amendment, but this court was considering the issue in the town of huntington. while congress is passing the 1988 amendment, this court has a case where the issue is raised and it was considering it. actively considering it. >> i thought your argument on the 1988 amendments was as follows, the fair housing act contemplated disparate impact analysis when it was adopted in 1968, or it didn't. the 1988 amendments, which made it clear that there could not be disparate impact analysis with respect to certain matters surely didn't expand the scope of the -- of what was initially enacted. the issue is what did congress , intend? what was the meaning of the act? i thought that was your
argument. >> precisely. the 1968 -- >> if we are going to be realistic about this, in 1964, when the civil rights act passed , and in 1968, when the fair housing act passed, nobody knew anything about disparate impact. that didn't come up. it was this court that gave that interpretation to title vii. that was in light of the purpose of the statute. to try to look back and say, did they mean disparate impact in 1964, it is a little artificial, don't you think? >> the court passed to the plaintext of the document. the text in 1964 did not use effects -- >> it has to construe
the plaintext of the law. the law consists not just of what congress did in 1968, but also what it did in 1988. you look at the whole law and you say, what makes sense, and if you read those provisions together, it seems to be anyou -- to be and technology meant that there is such a thing as disparate impact. we do not just look at the little piece. we look at the whole law. the law include the 1968 act and the 1988 amendments. there is such a thing as this for it impact. -- there is such a thing as disparate impact. >> the 1988 amendments don't refer to disparate impact. this is not like the title i amendment. >> it makes no see unnsss there is such a thing as disparate
impact. you are prohibiting something that doesn't exist. you are saying that they prohibit something that doesn't exist. >> they could do more work. they do work in treatment cases. take the occupancy exemption. the fair housing act also prohibits accommodations based on disability. the occupancy exemption is going to do work in that case. in the city of edmonds, the court noted that these exemptions were complete exemptions from fha scrutiny. congress didn't say it was limiting disparate impact. it said, we don't want these claims to go forward. >> so, they have an argument. the other side has an argument. i don't want you not to have a chance to answer an important question. there are good arguments on both sides. the law has been against you. there has been disparate impact for 40 years. let me be fair maybe it is only , 35. it is universally against you.
as far as i can tell, the world hasn't come to an end. the question i'm putting is maybe marbury versus madison was wrong. i don't think it was, but nonetheless, this has been the law throughout the united states it is important and all the horribles that are painted don't seem to have happened. or at least we have survived them. so why should this court , suddenly reverse an important law which seems to have worked in a way that is helpful to many people, has not produced disaster, on the basis of going back and making a finely spun argument on the basis of the text past many years ago? it is ambiguous at best. >> if you were to believe the statutes -- >> if it isn't ambiguous, it would be surprising. ten circuit courts of appeals have all entered the did -- interpreted it the way opposite you.
it is not unambiguous on their side. >> in 1988, the amendments didn't touch the text of the 1968 fair housing. >> if you will do me the favor of answering my question, the question -- it has been the law for 40 years or less, disaster has not occurred, and why would something so well-established throughout the united states change? why should this court change it? >> there is a serious protection question in here. as to why you would change it, disparate impact liability and where it leads is being applied in a case like this. texas was trying to give additional -- >> you don't like the way it was applied. i can understand that. but there are many remedies you have. one is, you go to hud and say, look at what is happening. this is having the opposite effect you want. that is one of your arguments.
then try to convince them. , if not there, you go to a court and say, court, this is a disparate impact case and we have a justification. the justification is strong enough that it survives the empirical effect. see if you can get them to agree. you may win. you may lose. what not to do is overturn the whole law that has been in effect for 40 years. it had helpful effects. that is a question, didn't signed like one, but it was one. i would like to hear what you have to say. >> sure. >> the equal protection concerns here are stark. the government does not explain if it is going to enforce the hud regulations to protect only minorities. if it does, that is likely unconstitutional. if it doesn't, that will interfere with programs -- >> how? >> maybe we are missing something here. didn't this court decide marbury
versus madison? >> absolutely. >> this court has never decided this issue. it is just that lower courts have decided it in a uniform fashion. have we ever before reversed uniform holdings of courts of appeals? even those that have lasted 30 years? the answer is yes. >> you have rejected the overwhelming consensus of the courts of appeals. that is why i asked the question. >> why? i'm not saying you couldn't do it. i'm simply saying, why? i don't want to repeat my question for the fourth time. you began to answer. the answer he began to give was based on the constitutional problem that has arisen. i have taken that in. you have other answers? >> the plaintext of the statute is clear. constitutional avoidance compels that interpretation. the purposes of the fair housing act would be undermined by extending disparate impact
liability to this degree. >> you are now talking about application. let's go back. you made a statement earlier that this is going to inhibit development of blighted areas. that has to do with the application of this case. if i'm right about the theory of disparate impact, and i've studied it very carefully, its intent is to ensure that anyone who is renting or selling property is doing so not on the basis of artificial, arbitrary or unnecessary hurdles. policies or practices. it is the petitioner who has to identify which they are, and to explain why alternatives would not work. if someone is developing a blighted area, or a area subject to crime or something else
that's something they can do. that is a criteria that can't be substituted for something else. so i don't know why you keep saying this is going to affect private development. >> justice sotomayor, the court reserved the question whether disparate impact liability, in requiring race-based decision-making, would violate equal protection -- >> this is not race-based decision-making. are you saying that a 10% plan in colleges is race-based? it is an absolutely neutral policy that happens to address a need, which is to integrate schools. why is it wrong to have a neutral policy? none of the policies that were
imposed here, and in most other cases. none of them are race-based. they are policies that are race-neutral but happen to have a better impact in terms of integration. >> i would disagree that it is race-neutral. because at the outset statistical disparities based on race are used -- and this has the potential to subordinate traditional -- >> which is not the case for the 10% plan that texas uses. >> absolutely justice. if you are in the top 10% of your high school class, you go to the state university. > > what was the reason for it? you can say it is neutral, 10% is neutral, but the legislature that passed this was very much race-conscious. it was the way that they saw a minority population. i don't think we doubt that factually.
that is what prompted the 10% plan, when university of texas was told its affirmative action plan was no good. then they came back with the 10% plan. >> there is a difference between that race-conscious decision-making and here, a decision where liability is triggered based on statistical disparity. >> >> liability is not triggered. it is not imposed because of that. it is imposed because the lower court found, rightly or wrongly, i don't want to get into the merits of that -- that some of the criteria being used were unnecessary. and that was -- there was no legitimate business reason for it. i could, as justice breyer said, quarrel with that conclusion. but that is in application, not in the standard that disparate impact imposes. >> but what objective standard is there to measure whether
something is a substantial interest in the housing context? that is why disparate impact liability can lead to the functional equivalent of a quota system. that is what the various decisions said. if i could reserve the remainder of my time for rebuttal. >> thank you, counsel. mr. daniel. >> mr. chief justice, may it please the court, the remedy in this case is consistent with the interest in revitalizing minority areas this case shows that there is nothing about -- >> we are not talking about this case. why don't you get to the real issue? >> the legal issue is, unavailable. unavailable is the result of measure. you look to see how many units are available and count them. that is how many uni arets
-- how many units are available. available. that is a result. it is clear from the congressional record, congress is concerned about making units only available in low income minority areas that it calls ghettos. the remedy -- >> is it the unavailable word that is the problem? it is on the basis of race. you can say "unavailable" a million times, but the statute requires that it be made unavailable for racial reasons. you are saying it doesn't have to be. it could be unavailable simply because you used some other nonracial reason, which is stupid. that's your argument. if it produces a result that is not -- what, i don't know, the races have to be in the same proportion that they are in the general population? that is what you are arguing. >> if in fact racial discrimination is a foreseeable consequence of what someone is
doing -- >> racial disparity is not racial discrimination. the fact that the nfl is largely black players is not discrimination. discrimination requires intentionally excluding people of a certain race. let's not equate disparity with discrimination. the two are quite different. what you are arguing here is that racial disparity is enough to make whatever the policy adopted unlawful. right? >> no, that is not what the argument is. that is not what is in the regulations. the argument is that, if i'm going to make a disparate treatment case that there is intentional discrimination, i'm going to start with the effect the same place i start with disparate impact. has there been any fact that is -- has there been an effect that is consistent with discrimination?
i then go on to the next step. is there an interest that justifies the discriminatory effect? it could be the same effect that was caused by intentional discrimination. >> mr. daniel, i thought that justice scalia's question was whether the cause of language precludes a disparate impact. whether the language signals that it has to have a certain kind of intent, which is not part of a disparate treatment, a disparate impact theory. i would have thought that your main argument about that is, the court has held numerous times in the title vii context, in the adea, in the rehabilitation act context, that because of language, can be read to include disparate impact claims. it is at least ambiguous as to
whether it should be read so in this case as to this particular statute. is that right? >> it has been interpreted both ways. in title vii, and in smith, it did not require proof of intent. >> complete your answer. how is a housing authority supposed to, if you have claim of disparate impact, how is a housing authority supposed to cure the alleged problem? assuming you go through the steps and there is in fact, a need. >> i'm sorry, you have made showing of disparate impact, that the impact has adverse consequences. what is the housing authority supposed to do at that point? >> at that point, >> the housing
authority is to say, this is the interest we have causing the racial segregation. they say, whatever that interest is, that this interest justifies our practice. the practice we are doing. that time, we come back and say there are other ways to do it that are less discriminatory. >> is there a way to avoid a disparate impact consequence without taking race into account? in carrying out governmental activity? it seems to me that if the objection is that there aren't a sufficient number of minorities in a particular project, you have to look at race until you get whatever you regard as the right target. >> you look at the practice causing it and you stop the practice, like in this case. >> this is a case where there was -- you prevailed, and there was a remedy.
what did the court say could be done to cure it, what it saw as the offense? >> stop the discriminatory housing process. then it ordered the remedy suggested by the state, that was less discriminatory alternatives to what they had been doing. there's no racial goals in it, no race-conscious in it, no racial criteria in it. it is a remedy that the state says will work to stop the discriminatory practice. >> could we go back? i think you've been interrupted. the steps are, first, show that the numbers are wrong, then the other side tells you what the
reason is for why the numbers aren't. you, then, have an opportunity to suggest alternative methods of taking care of the legitimate business need. correct? >> yes, justice sotomayor. >> those are the three steps. if you can propose ways that are race-neutral practices that will have -- that will take care of their needs, then you get relief. >> for example, do not continue putting projects next to landfills and hazardous industrial uses. >> you have a tension between two statutes. you have the fair housing act, and then there is the law of the tax credit. doesn't that law say that there should be a priority for
revitalizing decaying communities? >> the law specifically says there should be a preference among all projects awarded for applications that contribute to a concerted community revitalization plan. that preference is honored in the remedy. if an application is contributing to a concerted community revitalization plan, just like in the irs code, then it gets the same points as a project that is going to be in a higher income property area. >> why should you get more if the tax law expresses that preference for revitalization?
the district court found that the state did not do that. the state instead gave a one or two point selection criteria bonus for that kind of project. but that's -- >> what you are saying is those words make unavailable because of race can include the circumstance where you make unavailable for a reason that has nothing to do with race. where the effect of that reason is to cause a racial disparity of significance and it cannot be justified as the least restrictive way to bring about it. that's the point.
but you're saying those words are consistent with the longer phrase i just said. ok. is there case law or other -- aside from this area -- which builds your point and says yes those words do include the disparate impact situation or can? i thought that was his question. >> this court's two major opinions on this are of course grigs and smith. the same issue was wrestled with with the other courts who have found the same thing and the courts of appeal. it at least admits that -- it's a permissible reading either way. >> in smith, however, the plurality opinion cited two additional things. it didn't just say because of. it cited the effects language,
which was the subject of things. it didn't just say because of. it cited the effects language, which was the subject of some questioning during general keller's argument. but it also cited the rfo 8 provision. now neither of those -- i think the latter is more significant and there's nothing like that in title 8. is there? >> the exemptions are similar in the fact that what -- in smith came in and basically said even if you have disparate impact, if it's a reasonable factor other than age we're going to excuse the impact. now, the exemptions speak to the disparate impact and there's nothing in there that says you can excuse those don't count. >> critical to your argument that the exemptions are critical to your argument? >> we think the exemptions support the use of a disparate impact. we think there's other things. the congressional record what congress critical to your argument
that the exemptions are critical to your argument? >> we think the exemptions wanted to do, 3601 which congress passed to say it has been used to give an expansive interpretation. we think all those things combined to make it at least permissible and therefore giving due deference to the housing and urban development regulation. >> if there was no disparate impact under the act as initially enacted, do you argue that the it at least admits that -- it's a permissible reading either way. >> in smith, exefrpbltion's expanded the act so that it then as of 1988 included disparate impact? >> well, if there was none then there -- indicated that 1988 congress thought there was. we don't think you can look at what congress did in 1968 and say they did not intend to cover effects. >> well that wasn't really my
question. what congress thought the act meant in 1988 wouldn't have any sigget significance -- wouldn't have much if they hadn't done anything. >> i think they were doing it in 1988. it counts for 1988. >> dizz the things they actually did in 1988 expand the coverage of the act? >> no. we think that the coverage was already there in the 1968 act. when you look at all the tools statutory construction they all point in one direction and that is to being at least a permissible if not the best interpretation in 1968 that congress intended to cover effects of past segregation and other discrimination, whether it was intentional or not. it's throughout that record it is discussing the major implement of racial segregation how it's brought about. it intended to end the effects
of that. we said it again and again. we said in 1988 it talked about the disparate impact rule in the courts of appeals. it knew it was there. it was being done in the context of those courts of appeals. >> no further questions. >> thank you, counsel. >> mr. chief justice. may it please the court. the statutory provisions that most clearly show that housing and urban development's disparate impact regulations are a permissible interpretation of the fair housing act are the three exemptions. those pree suppose and serve no real purpose without them. without disparate. and the providence of those lend particularly strong
support for the reasonableness of h.u.d.'s reading. they were add i by amendment in 1988, i think the number is nine, had ruled that the fair housing act authorized disparate impact and they were added to provide the fence defenses to carveout impact liability. so i think your case would be stronger if there had been no court of appeals that had favored disparate impact. then you couldn't possibly argue, well, that was put in just to eliminate the erroneous judgments of these courts of appeals in certain areas anyway. it would be better if no court of appeal had said that. >> i actually think it's better for our case because of the reenactment cannon. it was reenacted against the back drop so you have the
reenactment can non-and against sprerfluse amendments. remember we're in chevron territory here so the question is whether the statutory text unambiguously forecloses if there had been no court of appeals that had favored disparate impact. h.u.d.'s interpretation. >> but one concern about disparate impact is that it's very difficult to decide what impact is good and bad. take two proposals. one is a proposal to build new housing in a low income area to benefit primarily minorities. new housing good thing. the other proposal is to build housing in a more affluent area would help promote integration of housing. also a good thing. which one gets credit for under trying to decide the impact, the one that is revitalizing the low income area or the one that is integrating a high
income area? >> i understand that. and there may be difficult questions. of course the agency here charged by congress expressly in the 1988 amendments, i would add, with interpreting and enforcing these provisions has concluded that disparate impact is the right policy judgment? brur which counts? which benefit's -- you're trying to see if there's a disparate impact on no, sir to give the proposal to the low income housing in the affluent neighborhood. if you give the proposal to fund the proposal in the low income area, that certainly helps housing opportunities there. >> i think you've got to do it in the context of the way in which the disparate impact has got to be proven. it's not just that there's a statistical disparity. the plaintiff has got to demonstrate that a particular practice or criterion being applied. >> what is the practice here? >> that's a very good question, if i may just answer justice ginsburg and i'll come back and
answer yours chief justice. >> that's a very good point. although we are here defending h.u.d.'s interpretation and the i think the answer presented is yes. that we don't have a position on whether this is a viable disparate impact claim and we think judge jones has made a good point in her concurrence because it's not clear to us what specific practice that the state agency has engaged in here that would justify the finding of disparate impact liability and one thing that was suggested is maybe that could be delt with on remand. and that's what i was trying to say to you mr. chief justice which is that you've got to apply the test which is h.u.d. has said is a real good test. >> i don't think that's responsive. you say you look at which provision is having the disparate impact but i still don't understand which is the disparate g pact. in other words, is one gets credit for under trying it the provision that causes more to go to the affluence area or the provision that causes more
approval of more in the low income? you've got to know what you're shooting at first. >> the disparity tied to a particular practice is just the first step in the analysis. the second step in the analysis is justification. what's the justification. >> just answer ask the last time and i'll let you get on. you're saying you need justification but for what? which is the bad thing to do? not promote better housing in the low income area or not promote housing intgreags? >> it may say you look at what's causing the bad effect but what's the bad effect? >> it may be that neither is because the government may say in the first case well this is our justification and that may be a justification that holds up. the government may say in the second case that's our justification and that may be a justification that holds up. >> do you think that a private developer would ever be found guilty of disparate impact?
because he owns a piece of property if in an b affluent neighborhood? >> no. certainly not. >> he's permitted to develop this property. right? >> of course. >> but the disparate impact would be if he fails to say or make available to people of all races, let's say, the units in that property. correct? >> there's got to be a specific practice. >> the specific practice -- >> that's just the fiss analysis would be unjust fid. >> exactly. i thought the question was though it's not a developer it's the department of housing and community affairs. i thought the challenge went to where they were supporting development. not the developer. >> this may not be good disparate impact claim. but the cases that are in the heartland are really pretty straightforward. >> are you saying that in each
case that the chief justice puts there is initially a disparate impact at step one that is to say community a wants the development to be in the suburbs. in the next state the community wants it to be in the poorer neighborhood? is your position it seems to me the position of the respondents that in either case step one has been satisfied? >> that may be right justice kennedy. >> but that seems very odd to me. >> but i think that even if they're difficult cases there are cases in the heartland that have been adjudicated for 35 or 40 years cases such as there's a zoning restriction that has a dispratt impact that cannot be justified on a substantial basis. there's an occupancy restriction. >> ask you a question about chevron. should we be concerned here about the use of chevron to manipulate decisions of this court? >> fair housing act was enacted in 1968.
for 40 years plus there were no housing and urban development regulations. then we granted sert in the gallacher case and it was only after that and within i think days after that that the h.u.d. regulations were issued. and then the gag ger case settled and we granted sert in the mall holly case and the mall holly case settled. should we be troubled by this chronology? >> i understand the import of your question. i would say a couple things in response. the first is that h.u.d. in formal adjude caseications reduce by in the fair housing act since 1992 i believe and those would be entitled to chevron deference i think that's a point we made in our brief in the first case gallacher case. the second -- and i don't mean to be flip about it because i
understand the import of your honor's question. but i do think it overestimates the efficiency of the government to think that the proposed rule making on issue like this out within seven days. >> that's very persuasive. >> i so i think actually this has been the position of h.u.d. for a very long time and you would get chevron deference for the adjudications. i think that's pretty clear wholly apart from the reg but we do have the reg now and i do think it gets chevron deference. >> if i could turn to the question of constitutional avoidance that has come up. i don't think this is a suitable case for constitutional avoidance. let me try to explain why. whatever one might think in the title 7 context about the consequences of finding disparate impact liability, this is a very different context. the title 7 context the issue has been raised is that the
only way to avoid disparate impact liability is to engage in race-based remedies, not race-based thinking about what citen to adopt but race-based remedies. and here in the the heartland cases under the fair housing act you aren't going to have that kind of an issue. the remmy is going to be the substitution of one race neutral rule for another. for example, if a landlord cannot justify an occupancy restriction that is particularly tight, the remedy there is going to be either no occupancy restriction or a looser occupancy restriction. and the consequence, the consequence is no one gets classified by race. no one gets a burden imposed upon them because of race. and no one gets a benefit
because of race. >> who you select depends on what effect that will have on racial use of the facility. >> i think the a benefit because of consequence -- >> like this on the basis of what effect it will have on race. >> well, but that kind of conversation so long as the rule that comes later is a race neutral rule seems to me is exactly the kind of thing that the flureralt opinion of this court said in the contracting context that governments could do. they couldn't afford a preference to minority contractors but they could do such things the court suggested as changing the bonding requirements or other financial requirements in order to make the minority contractors which tended to be newer smaller businesses more eligible. >> i think everybody's getting confused with this. disparate impact does not go to who they take unless they set up a practice. >> that's correct. in the heartland cases with respect to the fair housing act the kinds of remedies that are going to be imposed are like --
plurelt. and justice kennedy they're like the kinds of race neutral conversations that -- >> what you're saying is suppose that the plaintiffs in this case that side wins. they're trying to win. the defense -- it's not true that that means all section 8 how'sing is now going to be or even large amount are going to be put in rich neighborhoods. first they can defend on the ground that we don't have that practice. to put it in even large amount are going to be put in rich neighborhoods. first they can defend on the ground that we don't have that practice. to put poor neighborhoods. second they can say yes we do but don't you see that isn't going to hurt minorities. because it puts those minorities in housing where many of them are, unfortunately, in poor neighborhoods. and it doesn't have the great effect on desegregation that they think. or third, if they lose on that, they can say but anyway it's justified for a whole bunch of reasons. so the answer is case by case they have a specific set of
forms that give answers. and judges judge it. and h.u.d. can come in and decide and there is no need to throw the whole baby out or i don't know if it's the baby or the bath water whatever you're throwing out but you don't have to throw out the whole bing big thing in order to prevent. >> just so i can understand because again i don't know what you're shooting the baby for. two communities have these tax credits. one place they give it to the housing in the affluent neighborhood the other they give it to the housing in the low neighborhood. they're both sued for disparate impact. the one they say this is good. so the impact on the minorities is not a problem. the other says this is good because we're revitalizing low income neighborhoods. >> they might both win yes. and i just want to finish up on the constitutional avoidance plan. if there are particular instances in which there is a concern that the recognition of
disparate impact liability could result in not just race-based thinking about neutral means but race based remedies seems the court is think about them on an as-applied behaves but that isn't the juss if iication for denying h.u.d. the authority that we submit that h.u.d. has turned statute as amended in 1988 when congress specifically gave h.u.d. the authority to interpret these provisions and did so against the backdrop of posing the exemptions which presuppose disparate liability and reenacting the statute which after nine courts of appeals had found that it did impose disparate liability. the question is under whether chevron the statutory text read fairly taking all provisions of the statute together unambiguously forecloses h.u.d. from finding disparate liability here. and we submit that the answer
to that question must be no. it does not unambiguously forbid h.u.d. from reaching the conclusion it reached and therefore the answer to the question presentd in this case which is whether the fair housing act recognizes disparate impact liability is yes. >> could i just ask i don't know a lot about this area and i take it that one of the things that you are warning us against is seeing the entire area through the prism of this one quite unusual case. and you've referred a few times to sort of the heartland cases without really getting out what the heartland cases are. so for me are what are they? >> sure. they're the kinds of cases that have been litigated you see in the court of appeals opinions for 35 years restrictions say a town adopts a restriction saying you can't convert housing from ownership to rental unless you are renting to a blood relative has the
effect of excluding minorities. a town adopts an adopts an occupancy restriction for apartment buildings that is so tight that you're not going to be able -- families with kids are not going to be able to live there. those kinds of things. zoning restrictions, housing program restrictions, those kinds of rules are the heartland caseses. thank you. >> general keller you have four minutes remaining. >> plfment chief justice the answer to your question is both would open up liability for disparate impact. here could face disparate liability if it was going to take tax creditor if it was going -- >> you keep saying that. but that's not what happens here. the remedy was not to tell you to move your development from one area to another. the remedy here was it did preclude development next to land fills. but it also included other
tinkering with the qualifications. but you're going to still need people who want to do -- >> but remedy in this case -- what they want to do. >> but the disparity -- >> that has to go with your attacks on the remedy. that doesn't have anything to do with what disparate impact as an approach set out by h.u.d. direct should be done. >> in each regulated entity is going to have to examine the racial outcomes of their policies in every decision made. >> no. what they have to do is what everyone should do. is before they set up any policies think about what is the most race neutral policy. that's a very different thing. that i think everyone is obligated to do. >> and that's -- >> it's only if the other side proves that a qualification has
and a race effect that's not necessary can they win. >> in here the department engaged in race-neutral policies. to your question there are three things that distinguish that from this case. first an important textual differs. other than age, prohibited smith interpreted that as recognizing the disparate impact liability could lie in the a.d.a. in the fair housing act we don't have that lung nothing in the fha prohibits or limits. so this is truly a safe harbor. second smith already noted that smith didn't involve race so no constitutional avoidance would have applied there. and the reason we're here today is because the texas department did not dwruse race-based decision making. take a hypothetical if the university of michigan had said the incoming class must have
30% of an incoming race. if those aren't available, race-based means must be used, that would be suspect. at the very least. all we need to show is a constitutional doubt for it to apply. >> what in the remedy ordered here was race-based? what remedy said you have to take in 10, 20, 15%? >> the particular remedy here remedy wasn't race based but the liability to begin with and whether the disparity is going
the court's ruling. he was joined by the vice president and in the white house rose garden. president obama: good morning, everybody. five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate, we finally declared that in america, health care is not a privilege for a few but a right for all.
over those five years, as we've worked to implement the affordable care act, there have been successes and setbacks. the setbacks, i remember clearly. but as the dust has settled, there can be no doubt that this law is working. it has changed and in some cases saved american lives. it's set this country on a smarter, stronger course. today after more than 50 votes in congress to repeal or weaken this law, after a presidential election based in part on preserving or repealing this law, after multiple challenges to this law before the supreme court, the affordable care act is here to stay. this morning, the court upheld a critical part of this law. the part that made it easier for americans to afford health
insurance regardless of where you live. if the partisan challenge to this law had succeeded millions of americans would have had thousands of dollars' worth of tax credits taken from them. for many, insurance would have become unaffordable again. many would have become uninsured again. ultimately, everyone's premiums could have gone up. america would have gone backwards. that's not what we do. that's not what america does. we move forward. so today is a victory for hardworking americans all across this country whose lives will continue to become more secure in the changing economy because of this law. if you're a parent, you can keep your kids on your plan until they turn 26. something that has covered millions of young people so far. that's because of this law. if you're a senior, or an american with a disability this law gives you discounts on your prescriptions.
something that's saved nine million americans an average of $1,600 so far. if you're a woman, you can't be charged more than anybody else even if you've had cancer or if your husband had heart disease or just because you're a woman. your insurer has to offer free preventive services like mammograms. they can't place annual or lifetime caps on your care, because of this law. because of this law and because of today's decision, millions of americans who i hear from or just because you're a every single day will continue to receive the tax credits that have given about eight in 10 people who buy insurance on the new marketplaces the choice of health care plans that cost less than $100 a month. and when it comes to pre-existing conditions, someday our grandkids will ask us, if there was really a time when america discriminated against people who get sick,
because that is something this law has ended for good. that affects everybody with health insurance, not just folks who got insurance through the affordable care act. all of america has protection it didn't have before. as the law's provisions have gradually taken effect, more than 16 million uninsured americans have gained coverage so far. nearly one in three americans who was uninsured a few years ago is insured today. the uninsured rate in america is the lowest since we began to keep records. that is something we can all be proud of. law has ended for good. meanwhile, the law has helped hold the price of health care to its slowest growth in 50 years. if your family gets insurance through your job, or you're not using the affordable care act, you're still paying about $1,800 less per year on average
than you would be if we hadn't done anything. by one leading measure, what business owners pay out in wages and salaries is now, finally, growing faster than what they spend on health insurance. that hasn't happened in 17 years. and that's good for the workers. and it's good for the economy. the point is, this is not an abstract thing anymore. this is not a set of political talking points. this is reality. we can see how it is working this law is working exactly as it's supposed to. in many ways this law is working better than we expected it to. for all the misinformation campaigns, all the doomsday predictions, all the talk of death panels and job disruption, for all the repeal attempts, this law is now helping tens of millions of
americans, and they've told me that it has changed their lives for the better. i've had moms come up and say mitigating circumstance son was able to see a doctor and get diagnosed and catch a tumor early and he's alive today because of this law. this law is working. and it's going to keep doing just that. five years in, this is no longer about a law. this is not about the affordable care act. legislation or obamacare as a political football. this is health care in america. and unlike social security or medicare, a lot of memps still don't know what obamacare is beyond all the political noise in washington. across the country, there
remain people who are directly benefiting from the law but don't even know it. and that's ok. there's no card that says obamacare when you enroll. but that's by design. for this has never been a government takeover of health care, despite cries to the contrary. this reform remains what it's always been a set of fair rule -- fairer rules and tougher protections that have made health care in america more affordable, more obtainable and more about you. the consumer. the american people. it's working. with this case behind us, let's be clear. we've still got work to do to make health care in america even better. we'll keep working to provide consumers with all the tools you need to make informed choices about your care, and keep working to increase the use of preventive care that
avoids bigger problems down the road. we'll keep working to boost the steadily improving quality of care in hospitals. bring down costs even lower. make the system work even better. already we've seen reductions, for example, in the number of readmissions in hospitals. that saves our society money it saves families money, it makes people healthier. we're making progress. we've got to keep working to get more people covered. i'm going to work as hard as i can to convince more governors at state legislatures to take advantage of the law, puttle to -- politics aside, expand medicare and cover their citizens. we've still got states out there that for political reasons are not covering millions of people that they could be covering, despite the fact that the federal government's picking up the tab.
we've got more work to do. what we're not going to do unravel what's been woven into the fabric of america. my greatest hope is that rather than keep refighting battles that have been settled again and again and again, i can work with republicans and democrats to move forward. let's join together and make health care in america even better. three generations ago we chose to end an era when seniors were left to languish in poverty. we passed social security and slowly it was woven into this fabric of america and made a difference in the lives of millions of people.
two generations ago, we chose to end an age when americans in their golden years didn't have the guarantee of health care. medicare was passed. and it helped millions of people. this generation of americans chose to finish the job. to turn the page on the past when our citizens could be denied coverage just for being sick. to close the books on a history where americans had no hope of finding decent health care and had to hang their chances on faith. we chose to right -- to write a new chapter where in a new economy, americans are free to changer that jobs or start a business, chase a new idea raise a family, free from fear. secure in the knowledge that affordable health care is there for us and always will be. and that if we get sick, we're not going to lose our home. that if we get sick, that we're
going to be able to still look after our families. that's what america is, we look out for one another, we root for one another's success. when we strive to do better and to be better than the generation that came before us and try to build something better for generations to come. that's why we do what we do. that's the whole point of public service. so this was a good day for america. let's get back to work. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015]
>> make no mistake about this. today's decision has monumental significance. it means that the affordable care act is not just the law of the land it will remain the law of the land. it means that the millions of people who have been receiving subsidies that make all the difference in terms of whether health insurance is affordable people will continue to receive those subsidies and they will continue to have health insurance. so this is a big sigh of relief for millions of people across the country who previously were uninsured, who previously couldn't afford health insurance. but who today can afford insurance because they are receiving subsidies. and today the court by a 6-3 margin upheld the provision of those subsidies.
so at this juncture, hopefully now that the affordable care act is clearly a stable part of america's health care system, hopefully we can move on, hopefully we can have bipartisan efforts to try to make even further improvements with respect to america's this juncture, hopefully now that the affordable care act is clearly a stable health care system. making sure everyone has high quality health care and at an affordable price. but most importantly, the affordable care act has produced enormous progress more than one out of three people who were previously uninsured have now received health coverage and now that progress will continue. we will not go backwards. and more and more people will be able to get the health coverage they need to protect their families. so i want to introduce gwen. from texas. one of the millions of people
who are receiving the sbisbzis and whose sbisbzis will be protected. >> thank you ron. so i am excited today. i'm excited my husband and i are self-employed both self-employed and my husband had a severe tumor that required surgery and we were uninsured. but through the marketplace my husband was able to get an extensive surgery subsequently uninsured. but through the marketplace my husband was able to get an extensive surgery additional surgery and may to get to have surgeries continue to have as a result of this. this was an aggressive bone disease of his jaw and it impacted us gravely. but we are thankful today that the courts upheld this and realized that affordable care is not just for -- i don't
know. it's for everybody. and it should be. it would have affected over 6 million people had they not agreed to this. but now we don't have to worry about this any more. and i just thank everyone who supported this act. >> i just want to say one additional thing. we have seen extraordinary progress as a result of the affordable care act over the past two years. over 16 million people who were previously uninsured have gotten health coverage as a
result of the affordable care act. and most of the people who have signed up in these market places have done so as a result of subsidies. and these subsidies involve thousands of dollars in terms of relief in terms of premium costs. today the supreme court clearly held by a 6-3 margin that those subsidies will continue, that people have health insurance will be able to continue getting health insurance. and we will continue to make progress in the years ahead so that hopefully at some point in the not too distant future everyone in america will have health insurance. so thank you very much. >> my final thing is to say aca is here to say. i thank god for that. >> thank you. >> my name is neal.
i was former acting solicitor general of the united states. today's decision is a resounding victory for the president and for congress and for the american people. the supreme court by a 6-3 decision overwhelmingly upheld what the president has been saying all along, which is that these health insurance exchanges, whether set up by the state or federal government provide subsidies to individuals who can't otherwise afford them. i was sitting in the courtroom as the decision came down written by the chief justice who, after all, was appointed by president george w. bush. and for the first 10 minutes you could see right away where the decision was headed. the chief justice started off by saying that the affordable care act was based on three kind of legs of a stool. one was there was a lot of discrimination in health insurance and so you had to get rid of that discrimination with so-called guaranteed issue
requirements allowing everyone access to the insurance markets. the second piece of it was the chief said congress said well you also have to have an individual mandate. you have to have something to ensure that people buy that insurance. and the third piece was the subsidies to make sure people could afford the insurance that the affordable care act requires them to have. the chief justice said that's precisely what the affordable care act does in how it's written. it was a resounding victory for the government and resounding victory for the current solicitor general who gave oral arlingtonment of a lifetime in explaining why the president's interpretation was the correct one. today we have for the second time in three years a republican dock nated supreme court upholding the democratically elected affordable care act. a resounding victory for the
president and for the congress and for the american people. thank you. >> a number of senators weighed in on the supreme court decision which ruled that health care zisbzis should be available in states. we'll hear from harry reid followed by majority leader mitch mcconnell. obamacare has survived the latest partisan attempt to deny health care to working families, millions of working families. won today -- america won today. the supreme court ruled against republicans who were seeking to strip 6.5 million americans from the subsidies that enabled them to buy health insurance. america worntion won i repeat. very pure, very simple. more than 10 million americans are covered by the exchanges operating across the country
many of them insured for the first time. 85% of these men and women receive tax credits that help them afford that coverage. but on top of that, 12 million more americans now have coverage through the medicaid and children's health insurance programs. the commonwealth fund recently found that more than 8-10 adults that's four-fifths of people who have these programs, are satisfied with them. the affordable care act is not perfect. no law ever is. but this law is working for millions and millions of americans we're approaching 20 million americans. once again the afordable care act prevailed. so mr. president i say respectfully to my senate colleagues -- and i mean that -- stop banging your heads against the wall on this legislation. it passed. it's the law of this nation. stop it. move on. the republicans should be
really -- they should pause for a minute and look back. mr. president, i don't know the number anymore, i don't know -- i lost count of it -- is it 75? it's certainly approaching a hundred, that actually votes have taken place to repeal the law. never even came close to passing, of course, but they've done it time and time again. stop it. think of the time that's wasted doing that. as einstein said the pure definition of insanity is someone who keeps doing the same thing over and over again and gets the same results. i would hope republicans would rethink what they've been up to. their reckless, cynical attempts to increase taxes on millions of middle-income families -- that's what it amounted to. i was interested when we were looking at the paper today at what republicans have suggested
to do if the supreme court ruled against this law. ha-ha. every one of them, without exception would be a tremendous blow to the budgeting process in america. this bill makes america money. it's cut the deficit significantly and that's why i say it makes the country money. it allows for for a more healthy nation. republicans weren't content to jeopardize the health of americans in need of coverage assistance in order to exact political revenge against president obama. they were happy trying to do that. so mr. president i also think it's important to note that republicans who worked on this
legislation in the process going through the committees here they admitted that the legislation drafters never discussed withholding subsidies in the manner suggested by the plaintiffs. republicans said that who worked on that the legislation. so mr. president i think the public has basically had it with republicans trying to take away a law that protects them from insurance company discrimination when they get sick or hurt. enough is enough. i had a welcome to washington. i have them every thursday. i had a group of people there from nevada who have family members who suffer from cystic fibrosis. they were able to tell me that for the first time in the lives of their children, they were -- could not be denied insurance. they're adults now. they can't be denied insurance coverage because of this law. had this been repealed, people with cystic phi -- cystic
fibrosis and many other people would not be able to get health insurance. so, mr. president, let's move on to other topics. stop this. stop wasting the time of the american people by trying to repeal the law. i appreciate the work done in the supreme court. 6-3 decision. it was a good decision, a strong decision that upheld the law. enough's enough. consent further proceedings under the quorum call be dispensed with. the presiding officer: without objection. the majority leader. mr. mcconnell: mr. president that we're even discussing another of obamacare's self-inflicted brushes with the brink yet again is the latest indictment of a law that's been a rolling disaster for the american people. a rolling disaster for the american people. today's ruling won't change obamacare's multitude of broken promises including the one that resulted in millions -- literally millions of americans losing the coverage they had and wanted to keep. today's ruling won't change obamacare's spectacular flops.
spectacular flops. from humiliating web site debacles to the total collapse of exchanges in states run by the law's loudest cheerleaders. today's ruling won't change the skyrocketing costs in premiums deductibles and co-pays that have hit the middle class so hard over the last few years. the politicians who forced obamacare on the american people now have a choice. they can crow about obamacare's latest wobble towards the edge or work with us to address the ongoing negative impact of a 2,000-page law that continues to make life literally miserable -- miserable -- for so many of the same people it purported to help. a senator: mr. president?
the presiding officer: the senator from south carolina. mr. graham: i'd like to be recognized for five minutes to speak in morning business. the presiding officer: without objection. mr. graham: thank you. i have two very brief comments. one involves our national security, the world at large and the other involves our nation as a whole. first, as to the supreme court ruling. i'm surprised. i'm disappointed. but the ruling is now in and senator mcconnell said it well this doesn't mean that obamacare is fixed. it means that it's going to continue until somebody finds a better way or we're going to be left with obamacare for the rest of our lives and your children's lives and those that follow. 2016 race domestically will be centered on health care as the most dominant domestic issue in the country. if you're run for -- if you're running for the house or you're
running for the senate or you're running for senate, here is what this supreme court ruling means. if the public wants to continue obamacare which i think would be a huge mistake, vote democrat if you want to repeal and replace obamacare with something better for you and your family bipartisan vote republican. hillary clinton the most likely democratic nominee will make obamacare her own. whoever the republican party may nominate the one thing i can assure you is that they will repeal and replace obamacare with something better. so to the people of the united states you finally have a chance to have your say. this election in 2016 for the house and the senate and the white house will give you a chance to stop obamacare and
replace it with something better for you and your children. take advantage of this opportunity. because if we fail to have the people in place in 2016 to change course obamacare becomes cemented in terms of the american health care system and our economic future. and i think it would b mr. enzi: thank you mr. president. mr. president, i want to talk a little bit today about jobs and the economy and people's health care and they're all related. we're in the midst of one of the sloaflt growth periods -- one of the slowest growth periods for the economy in the recent period of the history of the united
states. they have revised the figures again. they now show a .2% of -- growth. they should be showing 2% growth for the year. why is that a problem? if the economy increases by just 1% it results in $300 billion to $400 billion more tax revenue without raising taxes. that's where we need to be. now when it's less than that 2%, it means we're losing that much in additional money. we can't make decisions on about $11 billion a year here, and we're overspending that by $468 billion. that's almost 50% overspending. no family can afford to do that. no city can afford to do that. no state can afford to do that. but obviously the federal government can because we just borrowed more. and so far there's a lot of confidence in this country that we can continue to borrow.
of course one of the areas where job growth and the economy growth is impeded is with the health care. president obama is disconnected from the harsh reality that this health care law has created for people almost two weeks ago speaking about his health care law, the president said -- and i quote -- "part of what's bizarre about this whole thing is we haven't had a lot of conversation about the horrors of obamacare because none of them have come to pass." none of them have come to pass? how insulated is our president? i just want to emphasize what he said. none of those horror stories have come to pass. apparently that message didn't make it very far because i hear a drastically different story from folks across wyoming and other parts of the country. people like a rancher from gillette who complained to me that her and her husband's health insurance went up from $11,000