National Federation of Independent Businesses v. Sebelius - Oral Argument - March 28, 2012

National Federation of Independent Businesses v. Sebelius

Media for National Federation of Independent Businesses v. Sebelius

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Audio Transcription for Oral Argument - March 28, 2012 in National Federation of Independent Businesses v. Sebelius

Samuel A. Alito, Jr.:

But if that is the case then there is nothing left. 27198812723016

John G. Roberts, Jr.:

We're not going to--

We will continue argument this afternoon in case 11-400 Florida v. Department of Health and Human Services.

It's not coercion. 32460063247256

Sonia Sotomayor:

Some governors rejected the stimulus bill--

John G. Roberts, Jr.:

Mr. Clement.

Paul D. Clement:

Mr. Chief Justice, and may it please the Court:

The constitutionality of the Act's massive expansion of Medicaid depends on the answer to two related questions: First is the expansion coercive and second does that coercion matter.

Elena Kagan:

Mr. Clement, can I ask you just a matter of clarification?

Would you be making the same argument if instead of the Federal government picked up 90 percent of the cost the Federal government picked up 100 percent of the cost.

Paul D. Clement:

Justice Kagan, if everything else in the statute remained the same, I would be making the exact same argument.

Elena Kagan:

The exact same argument.

So that really reduces to the question of why is a big gift from the Federal government a matter of coercion?

In other words, the Federal government is here saying, we are giving you a boatload of money.

There are no -- there's no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of Federal money for you to take and spend on poor people's healthcare.

It doesn't sound coercive to me, I have to tell you.

Paul D. Clement:

Well, Justice Kagan, let me -- I mean, I eventually want to make a point where even if you had a stand alone program that just gave 100 percent, again 100 percent boatload, nothing but boat load -- well, there would still be a problem.

Elena Kagan:

And you do make that argument in your brief, just a stand alone program, a boatload of money, no extraneous conditions, no matching funds, is coercive?

Paul D. Clement:

It is.

But before I make that point, can I simply say you built into your question the idea that there are no conditions.

And of course, when you first asked it was what about the same program with 100 percent matching on the newly eligible mandatory individuals, which is how the statute refers to them.

And that would have a very big condition.

And the very big condition is that the States in order to get that new money, they would have to agree not only to the new conditions but the government here is -- the Congress is leveraging their entire prior participation in the program--

Elena Kagan:

Well, let me give you a hypothetical, Mr. Clement.

Paul D. Clement:

--Sure.

Elena Kagan:

Now, suppose I'm an employer and I see somebody I really like and I want to hire that person.

And I say Im going to give you $10 million a year to come work for me.

And the person says well, I -- you know, I've never been offered anywhere approaching $10 million a year, of course I'm going to say yes to that.

Now we would both be agreed that that's not coercive, right.

Paul D. Clement:

Well, I guess I would want to know where the money came from.