Nos.

19-840 and 19-1019

In the Supreme Court of the United States

STATE OF CALIFORNIA, ET AL., PETITIONERS
v.
STATE OF TEXAS, ET AL.

STATE OF TEXAS, ET AL., PETITIONERS

v.
STATE OF CALIFORNIA, ET AL.

ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
 QUESTIONS PRESENTED
1. Whether the plaintiffs have standing to challenge
the application of certain provisions of the Patient Pro-
tection and Affordable Care Act (ACA), Pub. L.
No. 111-148, 124 Stat. 119.
2. Whether, as a result of the elimination of the
monetary penalty for noncompliance with the ACA’s
minimum-essential-coverage requirement, 26 U.S.C.
5000A(a), that requirement is no longer a valid exercise of
Congress’s legislative authority.
3. Whether, if the minimum-essential-coverage re-
quirement is now invalid, the remainder of the ACA’s
provisions are inseverable from it.

(I)
 PARTIES TO THE PROCEEDING

Petitioners in No. 19-840 are the States of California,

Connecticut, Delaware, Hawaii, Illinois, Minnesota,
New Jersey, New York, North Carolina, Oregon, Rhode
Island, Vermont, Virginia, and Washington, the Com-
monwealth of Massachusetts, the District of Columbia,
and Andy Beshear, the Governor of Kentucky, all of
which intervened in the district court and were appel-
lants in the court of appeals; and the States of Colorado,
Iowa, Michigan, and Nevada, which intervened as de-
fendants in the court of appeals. Respondents in No.
19-840 are the United States of America, the United
States Department of Health and Human Services, the
United States Internal Revenue Service, Alex Azar II,
in his official capacity as Secretary of Health and Hu-
man Services, and Charles P. Rettig, in his official ca-
pacity as the Commissioner of the Internal Revenue
Service, all of which were defendants in the district
court and filed a notice of appeal but argued in defense
of the district court’s decision in the court of appeals;
the United States House of Representatives, which in-
tervened as a defendant in the court of appeals; and the
States of Texas, Alabama, Arizona, Arkansas, Florida,
Georgia, Indiana, Kansas, Louisiana, Mississippi by and
through Governor Phil Bryant, Missouri, Nebraska,
North Dakota, South Carolina, South Dakota, Tennes-
see, Utah, and West Virginia, and Neill Hurley and
John Nantz, all of which were plaintiffs in the district
court and appellees in the court of appeals.
Petitioners in No. 19-1019 are the States of Texas,
Alabama, Arizona, Arkansas, Florida, Georgia, Indiana,
Kansas, Louisiana, Mississippi by and through Gover-
nor Phil Bryant, Missouri, Nebraska, North Dakota,
South Carolina, South Dakota, Tennessee, Utah, and

(II)
 III

West Virginia, and Neill Hurley and John Nantz, all of

which were plaintiffs in the district court and appellees
in the court of appeals. Respondents in No. 19-1019 are
the United States of America, the United States De-
partment of Health and Human Services, the United
States Internal Revenue Service, Alex Azar II, in his
official capacity as Secretary of Health and Human Ser-
vices, and Charles P. Rettig, in his official capacity as
the Commissioner of the Internal Revenue Service, all
of which were defendants in the district court and filed
a notice of appeal but argued in defense of the district
court’s decision in the court of appeals; the States of
California, Connecticut, Delaware, Hawaii, Illinois,
Minnesota, New Jersey, New York, North Carolina, Or-
egon, Rhode Island, Vermont, Virginia, and Washing-
ton, the Commonwealth of Massachusetts, the District
of Columbia, and Andy Beshear, the Governor of Ken-
tucky, all of which intervened in the district court and
were appellants in the court of appeals; and the States
of Colorado, Iowa, Michigan, and Nevada, and the
United States House of Representatives, which inter-
vened as defendants in the court of appeals.
The State of Wisconsin was originally a plaintiff in
the district court but later sought and was granted dis-
missal from the appeal.
 TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional and statutory provisions involved...................... 2
Statement ...................................................................................... 2
Summary of argument ............................................................... 11
Argument:
I. This Court has jurisdiction to reach the questions
presented addressing the merits and severability ..... 13
A. The plaintiffs have standing to challenge only
those ACA provisions that injure them and
may seek relief only to redress their own
cognizable injuries................................................... 14
B. The individual plaintiffs may challenge the
ACA’s insurance-reform provisions as
inseverable from the individual mandate ............. 16
II. The individual mandate is no longer a valid
exercise of Congress’s authority ............................... 23
A. The individual mandate no longer can be
construed and upheld as a valid exercise of
Congress’s taxing power because Congress
eliminated the tax .................................................... 24
B. The individual mandate cannot be upheld as a
precatory expression of congressional
sentiment or as a valid exercise of Congress’s
authority under the Necessary and Proper
Clause or the Commerce Clause ........................... 33
III. The individual mandate is not severable from the
rest of the Act .....................................................................36
A. The individual mandate is inseverable from
the guaranteed-issue and community-rating
provisions ................................................................. 37
B. The ACA’s remaining provisions are insevera-
ble.............................................................................. 43

(V)
 VI

Table of Contents—Continued:    Page

Conclusion ................................................................................... 49
Appendix — Constitutional and statutory provisions .......... 1a

TABLE OF AUTHORITIES

Cases:

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) ........... 20

Bolivarian Republic of Venezuela v. Helmerich &
Payne Int’l Drilling Co., 137 S. Ct. 1312 (2017) .............. 22
Branch v. Smith, 538 U.S. 254 (2003) .................................. 41
Califano v. Yamasaki, 442 U.S. 682 (1979)......................... 15
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
(2006) .............................................................................. 14, 15
Dahda v. United States, 138 S. Ct. 1491 (2018) .................. 19
Davis v. FEC, 554 U.S. 724 (2008) ....................................... 14
Free Enter. Fund v. Public Co. Accounting
Oversight Bd., 561 U.S. 477 (2010) .................................... 36
Gill v. Whitford, 138 S. Ct. 1916 (2018) ............................... 15
Hooper v. California, 155 U.S. 648 (1895) .......................... 27
Horne v. Flores, 557 U.S. 433 (2009) ................................... 19
King v. Burwell, 135 S. Ct. 2480 (2015) ..........7, 13, 38, 39, 45
Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969 (2016) ......................................................... 33
Lewis v. Casey, 518 U.S. 343 (1996) ......................... 14, 15, 21
Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998) ................................................. 33
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......... 18
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) .................................................................................... 25
Murphy v. NCAA, 138 S. Ct. 1461 (2018) ......... 16, 36, 40, 44
National Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012)..................................................... passim
 VII

Cases—Continued: Page
National Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007) ............................................. 40
New York v. United States, 505 U.S. 144 (1992) ................ 16
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ...... 20
Printz v. United States, 521 U.S. 898 (1997) ................ 16, 20
Summers v. Earth Island Inst., 555 U.S. 488 (2009) ......... 15
Town of Chester v. Laroe Estates, Inc.,
137 S. Ct. 1645 (2017) ................................................... 14, 19
United States v. Darby, 312 U.S. 100 (1941)....................... 25
Zobel v. Williams, 457 U.S. 55 (1982) .................................. 42

Constitution, statutes, and rule:

U.S. Const.:
Art. I ................................................................................. 12
Art. I, § 8:
Cl. 1 ................................................................. 24, 32, 1a
Cl. 3 (Commerce Clause) ............................passim, 1a
Cl. 18 (Necessary and Proper Clause) ......passim, 1a
Art. III .......................................................11, 13, 14, 15, 17
Dodd-Frank Wall Street Reform and Consumer
Protection Act, Pub. L. No. 111-203,
124 Stat. 1376 ...................................................................... 47
12 U.S.C. 5302 .................................................................. 47
Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 ...................................... 2
Tit. I, 124 Stat. 130 ........................................................ 2, 3
§ 1501(a)(2), 124 Stat. 243 ........................................... 3
§ 1501(b), 124 Stat. 244............................................ 2, 3
26 U.S.C. 36B ............................................................... 4
26 U.S.C. 45R ............................................................... 4
26 U.S.C. 4980H ..................................................... 4, 45
 VIII

Statutes and rule—Continued: Page

26 U.S.C. 4980I .......................................................... 45
26 U.S.C. 5000A ...........................................passim, 1a
26 U.S.C. 5000A(a) .................... 2, 29, 30, 33, 34, 39, 1a
26 U.S.C. 5000A(b) ................................................ 2, 2a
26 U.S.C. 5000A(b)(1) .......................................... 27, 2a
26 U.S.C. 5000A(b)(3) .......................................... 27, 2a
26 U.S.C. 5000A(c) ............................................. 2, 5, 3a
26 U.S.C. 5000A(c) (Supp. V 2011) ............................. 3
26 U.S.C. 5000A(c)(1) .......................................... 27, 3a
26 U.S.C. 5000A(c)(2) .......................................... 27, 3a
26 U.S.C. 5000A(c)(2)(B) (2012) ....................... 42, 22a
26 U.S.C. 5000A(c)(3)(A) (2012) ....................... 29, 22a
26 U.S.C. 5000A(c)(3)(A) ....................................... 5, 4a
26 U.S.C. 5000A(c)(3)(A)-(B) (2012) ................. 42, 22a
26 U.S.C. 5000A(c)(3)(D) (Supp. V 2017)............. 5, 29
42 U.S.C. 300gg(a)(1) ............................................ 3, 17
42 U.S.C. 300gg-1 .................................................. 3, 17
42 U.S.C. 300gg-3 .................................................. 3, 17
42 U.S.C. 300gg-4(a) .............................................. 3, 17
42 U.S.C. 300gg-4(b).............................................. 3, 17
42 U.S.C. 300gg-11 .......................................... 3, 17, 45
42 U.S.C. 300gg-14(a) ...................................... 3, 17, 45
42 U.S.C. 18022 ...................................................... 3, 17
42 U.S.C. 18031-18044 ................................................. 3
42 U.S.C. 18091(2) ....................................... 40, 42, 16a
42 U.S.C. 18091(2)(D) ........................................ 38, 17a
42 U.S.C. 18091(2)(I) ............................... 3, 17, 39, 19a
42 U.S.C. 18091(2)(J) ......................................... 37, 19a
Tit. II, 124 Stat. 271 .......................................................... 4
Tit. III, 124 Stat. 353......................................................... 4
Tit. IV, 124 Stat. 538 ......................................................... 4
 IX

Statutes and rule—Continued: Page

Tit. VI, 124 Stat. 684 ......................................................... 4
Tit. X:
§ 10106(a), 124 Stat. 908 .............................................. 3
§ 10106(b), 124 Stat. 909 .............................................. 2
§ 10106(b)(2), 124 Stat. 909 ......................................... 3
§ 10106(b)(3), 124 Stat. 910 ......................................... 3
Tax Cuts and Jobs Act, Pub. L. No. 115-97, Tit. I,
131 Stat. 2054 ................................................................ 5, 20a
§ 11081, 131 Stat. 2092 ........................................ 5, 29, 20a
4 U.S.C. 8 ................................................................................ 34
15 U.S.C. 7807 ........................................................................ 34
22 U.S.C. 7674 ........................................................................ 34
Fed. R. Civ. P. 54(b) ................................................................ 7

Miscellaneous:
13B Charles Alan Wright et al., Federal Practice and
Procedure, § 3531.15 (3d ed. 2008) .................................... 22
In the Supreme Court of the United States
No. 19-840
STATE OF CALIFORNIA, ET AL., PETITIONERS
v.
STATE OF TEXAS, ET AL.

No. 19-1019
STATE OF TEXAS, ET AL., PETITIONERS
v.
STATE OF CALIFORNIA, ET AL.

ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

OPINIONS BELOW
The amended opinion of the court of appeals (J.A.
374-489) is reported at 945 F.3d 355. The memorandum
opinion and order of the district court granting partial
summary judgment (Pet. App. 163a-231a) is reported at
340 F. Supp. 3d 579. 1 The order of the district court
granting a stay and partial final judgment (Pet. App.
117a-162a) is reported at 352 F. Supp. 3d 665.

1
Unless otherwise indicated, this brief refers to the appendix to
the petition for a writ of certiorari in No. 19-840.

(1)
 2
JURISDICTION
The judgment of the court of appeals was entered on
December 18, 2019. The petition for a writ of certiorari in
No. 19-840 was filed on January 3, 2020, and the condi-
tional cross-petition for a writ of certiorari in No. 19-1019
was filed on February 14, 2020. The petitions were
granted on March 2, 2020. The jurisdiction of this Court
rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are
reproduced in the addendum to this brief. App., infra,
1a-24a.
STATEMENT
1. The Patient Protection and Affordable Care Act
(ACA), Pub. L. No. 111-148, 124 Stat. 119, established a
framework of economic regulations and incentives that
restructured the health-insurance and healthcare in-
dustries. See J.A. 376. Among many other provisions,
Title I of the ACA, 124 Stat. 130, enacting 26 U.S.C.
5000A, see ACA § 1501(b), 124 Stat. 244, contains a
“[r]equirement to maintain minimum essential cover-
age,” 26 U.S.C. 5000A (emphasis omitted), which is col-
loquially known as the “individual mandate,” e.g., J.A.
375; see also ACA § 10106(b), 124 Stat. 909. Subsection
(a) of Section 5000A provides that certain individuals
“shall * * * ensure” they are “covered under minimum
essential coverage.” 26 U.S.C. 5000A(a). Subsection (b)
imposes “a penalty,” denominated as a “[s]hared re-
sponsibility payment,” on certain taxpayers who “fail[]
to meet the requirement of subsection (a).” 26 U.S.C.
5000A(b) (emphasis omitted). And subsection (c) speci-
fies “[t]he amount of the penalty imposed” for noncom-
pliance. 26 U.S.C. 5000A(c). As originally enacted, the
 3

penalty was “calculated as a percentage of household in-

come, subject to a floor based on a specified dollar
amount and a ceiling based on the average annual pre-
mium the individual would have to pay for qualifying
private health insurance.” National Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 539 (2012) (NFIB); see
ACA §§ 1501(b), 10106(b)(2) and (3), 124 Stat. 244,
909-910 (26 U.S.C. 5000A(c) (Supp. V 2011)).
In addition to the individual mandate, the ACA in-
cludes a number of other provisions addressing the
health-insurance and healthcare sectors. For example,
the “guaranteed-issue” provisions prohibit insurers
from denying coverage because of an individual’s medi-
cal condition or history. J.A. 376; see 42 U.S.C. 300gg-1,
300gg-3, 300gg-4(a). And the “community-rating” pro-
visions prohibit insurers from charging higher premi-
ums because of an individual’s risk profile, including
medical condition or history. J.A. 376; see 42 U.S.C.
300gg(a)(1), 300gg-4(b). Because the ACA prevented
insurers from setting premiums based on risk, Congress
expressly found that the individual mandate was “essen-
tial” to (among other things) the operation of the
guaranteed-issue and community-rating provisions and
that in tandem with other ACA provisions it would
“broaden the health insurance risk pool.” ACA
§§ 1501(a)(2), 10106(a), 124 Stat. 243, 908 (42 U.S.C.
18091(2)(I)).
Other provisions enacted by Title I impose prohibi-
tions on coverage limits, requirements to cover depend-
ent children, and essential benefits packages for insur-
ance plans. 42 U.S.C. 300gg-11, 300gg-14(a), 18022. Ti-
tle I also created insurance exchanges to allow consum-
ers to shop for insurance plans and provided subsidies
and tax incentives. 42 U.S.C. 18031-18044 (creation of
 4

insurance exchanges); 26 U.S.C. 36B, 45R, 4980H (tax

changes). Other Titles of the ACA enacted a number of
other changes, including expanding the Medicaid pro-
gram (Title II, 124 Stat. 271), amending the Medicare
program (Title III, 124 Stat. 353), enacting a range of
prevention programs (Title IV, 124 Stat. 538), and im-
posing anti-fraud requirements (Title VI, 124 Stat. 684).
2. In NFIB, this Court addressed whether the indi-
vidual mandate was a valid exercise of Congress’s legis-
lative authority. A majority of the Court concluded that
the individual mandate could not be sustained as a valid
exercise of Congress’s authority under the Constitu-
tion’s Commerce Clause, Art. I, § 8, Cl. 3, or Necessary
and Proper Clause, Art. I, § 8, Cl. 18. NFIB, 567 U.S.
at 547-561, 574 (opinion of Roberts, C.J.); id. at 649-660
(Scalia, Kennedy, Thomas, and Alito, JJ., dissenting
(joint dissent)); see id. at 572 (opinion of the Court). As
the Chief Justice explained, “the power to regulate”
commerce “assumes there is already something to be
regulated.” Id. at 550 (opinion of Roberts, C.J.). But
“[t]he individual mandate,” he observed, “does not reg-
ulate existing commercial activity”: it “compels individ-
uals to become active in commerce by purchasing a
product.” Id. at 552; see id. at 548-558. And although
the Court’s “jurisprudence under the Necessary and
Proper Clause * * * ha[s] been very deferential to Con-
gress’s determination that a regulation is ‘necessary,’ ”
the Chief Justice explained that the individual mandate
could not be sustained under that Clause because it pur-
ported to “create the necessary predicate to the exer-
cise of an enumerated power.” Id. at 559-560; see id. at
558-561.
A different majority of the Court determined, how-
ever, that the individual mandate could be construed as
 5

an exercise of Congress’s taxing power to save the

mandate from unconstitutionality. NFIB, 567 U.S. at
563-574. The Chief Justice noted that “[t]he most
straightforward reading of the mandate is that it com-
mands individuals to purchase insurance.” Id. at 562
(opinion of Roberts, C.J.). But in his opinion for the
Court, the Chief Justice concluded that the shared-
responsibility payment also could “reasonably be char-
acterized as a tax” that the “Constitution permits.” Id.
at 574. The Court found that construction “reason-
abl[e]” based on a “functional” analysis of the “ ‘shared
responsibility payment.’ ” Id. at 563, 565, 574 (brackets
and citation omitted); see id. at 563-570. Among other
things, the Court observed that the shared-responsibility
payment “yield[ed] the essential feature of any tax: It
produces at least some revenue for the Government.”
Id. at 564.
3. a. In December 2017, Congress enacted the Tax
Cuts and Jobs Act (TCJA), Pub. L. No. 115-97, Tit. I,
131 Stat. 2054. Among other things, the TCJA elimi-
nated the shared-responsibility payment as of January
1, 2019. § 11081, 131 Stat. 2092. It did so by reducing
the amount of the required payment specified in Section
5000A(c) to zero. See ibid. (setting the percentage of
income used to calculate the penalty at “Zero percent,”
setting the “applicable dollar amount” in 26 U.S.C.
5000A(c)(3)(A)—the figure used to calculate the mini-
mum penalty—at “$0,” ibid., and eliminating the for-
mula in 26 U.S.C. 5000A(c)(3)(D) (Supp. V 2017) for in-
dexing that figure). The TCJA did not otherwise modify
Section 5000A.
Following the TCJA’s enactment, several plaintiffs,
including Texas, 17 other States, and two individuals,
brought this suit challenging the constitutionality of the
 6

individual mandate and the enforceability of the re-

mainder of the ACA. J.A. 383. Count I of their com-
plaint alleged that Congress’s elimination of the penalty
abrogated the basis of NFIB’s saving construction of
the individual mandate—as an exercise of Congress’s
taxing power—and they argued that the remainder of
the ACA is inseverable from the mandate. Ibid.; see
J.A. 61-63. Count I sought a declaratory judgment to
that effect and a permanent injunction. J.A. 63. The
other counts challenged the ACA and implementing
regulations on other grounds and sought various declar-
atory and injunctive relief. J.A. 63-67. The plaintiffs
also requested a preliminary injunction. Pet. App. 177a.
The federal government agreed that the individual
mandate is no longer constitutional and argued that the
guaranteed-issue and community-rating requirements
are inseverable from it. J.A. 383-384. California, 15
other States, and the District of Columbia intervened to
defend the ACA. J.A. 384 & n.10.
b. The district court converted the plaintiffs’ re-
quest for a preliminary injunction into a motion for par-
tial summary judgment, over the intervenor States’ ob-
jection. Pet. App. 165a; see J.A. 370-372. In an exten-
sive opinion, the court denied the request for a prelimi-
nary injunction but granted the plaintiffs partial sum-
mary judgment on their claim (Count I) that the indi-
vidual mandate is invalid and that all other ACA provi-
sions are inseverable from it. Pet. App. 163a-231a.
Following a detailed review of the ACA, NFIB, and
the TCJA, id. at 165a-175a, the court held that the plain-
tiffs had standing to challenge the mandate, id. at 181a-
185a, and that the mandate is no longer constitutional
in light of the TCJA’s elimination of the penalty, id. at
185a-204a. The court observed that NFIB’s reasoning
 7

“compels the conclusion that the Individual Mandate

may no longer be upheld under the Tax Power,” and it
“remains unsustainable under the Interstate Com-
merce Clause.” Id. at 164a.
The district court additionally concluded that “the
Individual Mandate is inseverable from the ACA’s
remaining provisions.” Pet. App. 165a; see id. at
204a-231a. The court reasoned that “the 2010 Congress
expressed through plain text an unambiguous intent
that the Individual Mandate not be severed from” the
rest of the ACA; that “this text-based conclusion is fur-
ther compelled by two separate * * * decisions” from
this Court—NFIB and King v. Burwell, 135 S. Ct. 2480
(2015); and that “the 2017 Congress had no intent with
respect to the Individual Mandate’s severability” that
could displace that earlier intent. Pet. App. 208a, 214a,
228a; see id. at 208a-231a.
c. All parties agreed that the district court’s deci-
sion should not take effect pending appeal. See D. Ct.
Doc. 213-1, at 8-9 (Dec. 17, 2018); D. Ct. Doc. 216, at 6-8
(Dec. 21, 2018); D. Ct. Doc. 217, at 2 (Dec. 21, 2018). The
court entered a partial final judgment as to Count I, de-
claring the individual mandate unconstitutional and in-
severable from the remainder of the ACA, Pet. App.
116a, 120a-123a, but it stayed the judgment and further
proceedings pending appeal, id. at 114a-115a, 120a,
123a-162a. 2

2
In its brief addressing further proceedings, the federal govern-
ment stated that issuance of a partial final judgment under Federal
Rule of Civil Procedure 54(b) would be inappropriate in the case’s
then-current posture because no single claim had been completely
resolved. D. Ct. Doc. 216, at 7-8, 13. The government understood
the complaint’s counts as asserting only a single claim under alter-
native legal theories and seeking various other forms of relief, which
 8

4. a. The federal government and the intervenor

States appealed. See J.A. 385. Several additional States
moved unopposed in the court of appeals for permissive
intervention, seeking to join California and the other
States that had intervened in the district court to de-
fend the ACA. Colorado et al. C.A. Mot. to Intervene
6-7 (Jan. 31, 2019); see J.A. 385 & n.12. The court of
appeals granted their motion. 2/14/19 C.A. Order 2.
The United States House of Representatives also
moved to intervene in the appeal as of right or, alterna-
tively, for permissive intervention. House C.A. Mot. to
Intervene 5-20 (Jan. 7, 2019); see J.A. 385. The court of
appeals granted the House permissive intervention.
19-841 Pet. App. 113a-114a.
In addition, while the appeal was pending, the fed-
eral government notified the court of appeals that it had
concluded that all of the ACA’s remaining provisions
are inseverable from the individual mandate. J.A. 385.
The government advanced that position in the appeal.
See Gov’t C.A. Br. 36-49. The government, however,
contended that any relief should be limited only to what
is necessary to remedy the plaintiffs’ own injuries. Id.
at 26-29; see J.A. 385-386, 446-448.
b. A divided panel of the court of appeals affirmed in
part and vacated in part. J.A. 374-448.
i. The court of appeals first concluded that at least
the federal government and the intervenor States had

the court had not addressed. Ibid. As the government explained in

the court of appeals, however, the district court’s issuance of a par-
tial final judgment as to Count I “foreclosed any further remedial
proceedings with respect to that count” and reflected a different
view of the complaint’s other counts as distinct claims. Gov’t C.A.
Br. 4 n.1. In light of that development, the government agreed that
the court of appeals had jurisdiction. Ibid.
 9

standing to appeal. J.A. 387-392. Turning to the district

court’s jurisdiction, the court of appeals determined
that both the individual and State plaintiffs had stand-
ing to bring this lawsuit. J.A. 392-413. It agreed with
the district court that “the undisputed evidence showed
that the individual mandate caused” the individual
plaintiffs two injuries—a “financial injury” of being
forced to obtain insurance and an “increased regulatory
burden”—which “a favorable judgment would redress.”
J.A. 396-397; see J.A. 396-406. The court of appeals ad-
ditionally found that the State plaintiffs have standing
because the ACA causes them “fiscal injuries as em-
ployers” subject to various ACA requirements. J.A.
406; see J.A. 406-413. But it observed that, “even if the
state plaintiffs did not have standing, this case could
still proceed because the individual plaintiffs have
standing,” J.A. 406 n.26, and vice versa, see J.A. 406
n.25.
On the merits, the court of appeals held that the in-
dividual mandate is no longer “a constitutional exercise
of congressional power.” J.A. 414; see J.A. 414-426. It
observed that “[a] majority” of this Court in NFIB had
held that the mandate could not be sustained under the
Commerce or Necessary and Proper Clauses and had
“save[d] the individual mandate from unconstitutional-
ity” only by “[r]ead[ing]” the individual mandate “to-
gether with the shared responsibility payment * * * as
a legitimate exercise of Congress’ taxing power.” J.A.
415, 417-418. “Now that the shared responsibility pay-
ment amount is set at zero” under the TCJA, the court
of appeals reasoned, that “saving construction is no
longer available.” J.A. 419; see J.A. 419-426.
 10

The court of appeals then turned to “whether, or how

much of, the rest of the ACA is severable from” the in-
dividual mandate. J.A. 427. But the court did not decide
that question. Instead, it “remand[ed] to the district
court to undertake two tasks.” Ibid.
First, the court of appeals determined that the dis-
trict court had not undertaken the “analysis required by
severability doctrine” under this Court’s precedents.
J.A. 430; see J.A. 444-445. The court explained that the
severability inquiry here “involves a challenging legal
doctrine applied to an extensive, complex, and oft-
amended statutory scheme,” and it was “not persuaded
that the approach to the severability question set out in
the district court opinion satisfie[d] that need.” J.A.
434.
Second, the court of appeals directed the district
court to consider the federal government’s argument
that relief should be confined to redressing the plain-
tiffs’ injuries. J.A. 446-448. The court of appeals ex-
plained that “[t]he relief the plaintiffs sought in the dis-
trict court was a universal nationwide injunction,” and
although the district court had not granted injunctive
relief, it had entered “a judgment declaring the entire
ACA ‘invalid.’ ” J.A. 446. And the court of appeals as-
serted that “[t]he district court did not have the benefit
of considering” the government’s argument that “the
declaratory judgment should only reach ACA provi-
sions that injure the plaintiffs.” J.A. 446-447. The court
of appeals “agree[d]” with the federal government “that
remand is appropriate for the district court to consider”
that question “in the first instance.” J.A. 447.
ii. Judge King dissented. J.A. 449-489.
Judge King concluded that none of the plaintiffs had
standing to challenge the individual mandate. J.A.
 11

452-467. She reasoned that the individual plaintiffs’ as-

serted financial injury—the cost of obtaining health
insurance—was “self-inflicted” because they could “dis-
regard” the individual mandate “without consequence.”
J.A. 455, 461. She also concluded that the State plain-
tiffs lacked standing because the evidentiary record did
not support their various alleged injuries. J.A. 462-467.
On the merits, Judge King concluded that the indi-
vidual mandate remains constitutional. J.A. 467-474.
“Now that Congress has zeroed out” the shared-
responsibility payment, she reasoned, the individual
mandate “does nothing,” and merely “affords individu-
als the same choice individuals have had since the dawn
of private health insurance, either purchase insurance
or else pay zero dollars.” J.A. 467-468.
As to severability, Judge King “agree[d] with much
of ” the majority’s analysis but concluded that a remand
was unnecessary. J.A. 474. She observed that “[s]ever-
ability is a question of law that [an appellate court] can
review de novo,” and, in her view, Congress’s elimina-
tion of the shared-responsibility payment demonstrated
that it “believed the ACA could stand in its entirety
without the unenforceable coverage requirement.” J.A.
474; see J.A. 474-488.
c. Following a request for a poll on whether to re-
hear the case en banc, the court of appeals denied re-
hearing. J.A. 490. Six of the 14 judges who voted would
have granted rehearing en banc. J.A. 491.
SUMMARY OF ARGUMENT
I. The court of appeals correctly concluded that Ar-
ticle III jurisdiction exists over this case. The individ-
ual plaintiffs have shown that the ACA’s insurance-
reform provisions injure them by limiting their options
with regard to insurance coverage and by raising their
 12

costs. Accordingly, they have standing to challenge the

enforcement of those provisions. And on the merits,
they can claim that the reason those provisions cannot
be enforced is because they are inseverable as a statu-
tory matter from the individual mandate, which they
contend is unconstitutional in light of the TCJA’s elimi-
nation of the penalty. But the relief the Court orders
should be limited to redressing the injury actually
incurred—that is, the relief should reach only the en-
forcement of the ACA provisions that injure the individ-
ual plaintiffs.
II. The individual mandate no longer can be sus-
tained as a valid exercise of Congress’s Article I author-
ity. A majority of this Court determined in National Fed-
eration of Independent Business v. Sebelius, 567 U.S.
519 (2012), that neither the Commerce Clause nor the
Necessary and Proper Clause authorizes the mandate.
The Court upheld the mandate only by adopting a sav-
ing construction of 26 U.S.C. 5000A, characterizing the
mandate as the predicate to a tax. But Congress has
now eliminated the tax, removing the basis for that con-
struction.
The contrary arguments advanced by the intervenor
States and House lack merit. Their contention that the
mandate may still be viewed as the predicate to a tax of
zero dollars is incorrect. Under NFIB’s functional ap-
proach, a statute that imposes no tax liability on anyone
cannot be sustained as a tax. And the contention that
the mandate may be upheld either because it is now
simply precatory or because it still offers individuals a
choice between obtaining insurance and refraining from
doing so cannot be squared with the statutory text.
 13

III. The individual mandate cannot be severed from

the remainder of the ACA. Congressional findings incor-
porated into the ACA’s text clearly indicate that Con-
gress would not have adopted the guaranteed-issue and
community-rating provisions absent the individual man-
date’s requirement to purchase insurance. This Court
recognized the interrelatedness of these three provisions
in NFIB and King v. Burwell, 135 S. Ct. 2480 (2015).
And Congress’s 2017 amendment does not alter the
severability analysis because it left intact the critical
statutory findings about the interconnectedness of these
provisions—findings that were and remain the functional
equivalent of an inseverability clause.
The ACA’s remaining provisions are likewise insever-
able, because it is evident that Congress would not have
enacted them without the individual mandate and the
guaranteed-issue and community-rating provisions. The
NFIB joint dissent would have so held, and that conclu-
sion is still equally valid today. Nothing the 2017 Con-
gress did demonstrates it would have intended the rest
of the ACA to continue to operate in the absence of these
three integral provisions. The entire ACA thus must fall
with the individual mandate, though the scope of relief
entered in this case should be limited to provisions shown
to injure the plaintiffs.
ARGUMENT
I. THIS COURT HAS JURISDICTION TO REACH THE
QUESTIONS PRESENTED ADDRESSING THE MERITS
AND SEVERABILITY
The court of appeals correctly concluded that this
suit presents an Article III case or controversy. The
individual plaintiffs have shown that they are injured by
at least some ACA provisions—namely, various provi-
sions regulating health-insurance plans that limit the
 14

range and terms of plans the individual plaintiffs may

obtain and that increase their costs of obtaining cover-
age. They thus have standing to challenge the enforce-
ment of those provisions. And on the merits, they can
argue that those insurance-reform provisions cannot be
enforced because (1) those provisions (and indeed the
entire ACA) are inseverable from the individual man-
date, and (2) the mandate is now unconstitutional as a
result of Congress’s elimination in the TCJA of the pen-
alty for noncompliance. The individual plaintiffs can
make this merits argument regardless of whether they
would have Article III standing to challenge the individ-
ual mandate by itself. But if successful, any remedy—
whether a declaratory judgment or injunction—must be
limited to enforcement of the insurance reforms and
other ACA provisions that injure the individual plain-
tiffs.
A. The Plaintiffs Have Standing To Challenge Only Those
ACA Provisions That Injure Them And May Seek Relief
Only To Redress Their Own Cognizable Injuries
The plaintiffs bore the “burden of establishing their
standing” by showing “ ‘personal injury’ ” that is “ ‘fairly
traceable to the defendant’s allegedly unlawful conduct
and likely to be redressed by the requested relief.’ ”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)
(citation omitted). That showing must be claim-specific,
because “standing is not dispensed in gross.” Town of
Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650
(2017) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008),
in turn quoting Lewis v. Casey, 518 U.S. 343, 358 n.6
(1996)). “[A] plaintiff must demonstrate standing for
each claim he seeks to press and for each form of relief
that is sought.” Ibid. (citation omitted).
 15

So, too, any judicial “remedy must of course be lim-

ited to the inadequacy that produced the injury in fact
that the plaintiff has established,” Cuno, 547 U.S. at 353
(quoting Lewis, 518 U.S. at 357), and cannot go beyond
redressing the plaintiff ’s own injury, see Gill v. Whit-
ford, 138 S. Ct. 1916, 1929-1931 (2018); Summers v.
Earth Island Inst., 555 U.S. 488, 494-497 (2009). “The
actual-injury requirement would hardly serve [its] pur-
pose . . . of preventing courts from undertaking tasks
assigned to the political branches, if once a plaintiff
demonstrated harm from one particular inadequacy in
government administration, the court were authorized
to remedy all inadequacies in that administration.”
Cuno, 547 U.S. at 353 (quoting Lewis, 518 U.S. at 357)
(brackets omitted). Longstanding principles of equity
likewise limit relief to what is needed to redress the
plaintiff ’s own injuries. See Lewis, 518 U.S. at 359-360;
Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
This Court’s decisions accordingly make clear that a
plaintiff injured by one action of a defendant—such as a
particular practice, or a specific provision of law—may
not seek redress against other actions that do not harm
the plaintiff. For example, in Lewis—a suit by prison-
ers challenging various prison practices—this Court
held that Article III permitted relief only to redress the
one practice (regarding literacy services) that had been
found to injure a named plaintiff. 518 U.S. at 358. The
other practices the plaintiffs attacked “ha[d] not been
found to have harmed any plaintiff in th[e] lawsuit.”
Ibid. The Court declined to consider the provisions al-
lowing those practices and “eliminate[d] [them] from”
the injunction the lower courts had issued. Ibid.
 16

Similarly, in Printz v. United States, 521 U.S. 898

(1997), this Court held that certain provisions of a fed-
eral statute requiring state and local authorities to con-
duct background checks on prospective handgun pur-
chasers were unconstitutional. Id. at 933-935. The
plaintiffs—local officials required to conduct the back-
ground checks—attempted to leverage the invalidity of
that requirement to challenge other provisions of the
statute that did not apply to them, on the ground that
they were inseverable from the background-check re-
quirement. See id. at 934-935. The Court declined to
consider that additional argument. Id. at 935. The
plaintiffs’ severability arguments concerning those
other provisions raised “important questions,” but the
Court “ha[d] no business answering them” because
those other provisions did not “burden” any plaintiff in
the litigation. Ibid. The Court therefore “decline[d] to
speculate regarding the rights and obligations of par-
ties not before the Court.” Ibid. The Court distin-
guished the situation before it from New York v. United
States, 505 U.S. 144, 186-187 (1992), in which the Court,
after holding invalid a statutory provision that affected
the plaintiffs, then “address[ed] [the] severability” of
other provisions of the statute that also “affected the
plaintiffs.” Printz, 521 U.S. at 935; see Murphy v.
NCAA, 138 S. Ct. 1461, 1485-1487 (2018) (Thomas, J.,
concurring).
B. The Individual Plaintiffs May Challenge The ACA’s
Insurance-Reform Provisions As Inseverable From The
Individual Mandate
The parties and courts below disputed the plaintiffs’
standing to challenge the individual mandate. Com-
pare, e.g., J.A. 392-413 (court of appeals majority), Pet.
App. 181a-185a (district court), with J.A. 452-467 (King,
 17

J., dissenting). And neither court below comprehen-

sively determined which if any other ACA provisions
“actually injure the plaintiffs.” J.A. 447 (remanding for
the district court to consider the federal government’s
arguments addressing this issue). But at a minimum,
as the government explained below, the individual
plaintiffs have demonstrated standing to challenge cer-
tain interrelated insurance-reform provisions of the
ACA that restrict their insurance options and raise
their costs of obtaining coverage. See Gov’t C.A. Br.
23-24. That is sufficient to establish Article III jurisdic-
tion. And in pressing that challenge, the individual
plaintiffs may advance, and this Court may consider,
legal arguments that (1) the individual mandate is
invalid and (2) all other ACA provisions, including the
insurance-reform provisions that injure the individual
plaintiffs, are inseverable from it.
1. The two individual plaintiffs presented evidence
that they are injured by provisions of the ACA that pre-
clude them from obtaining insurance plans they prefer
and that increase their costs of obtaining coverage. The
ACA contains a number of provisions that regulate the
terms and premiums of health-insurance plans. Certain
ACA provisions directly prescribe coverage require-
ments and essential benefits. See 42 U.S.C. 300gg-11,
300gg-14(a), 18022. And the guaranteed-issue and
community-rating provisions, see 42 U.S.C. 300gg(a)(1),
300gg-1, 300gg-3, 300gg-4(a) and (b), limit insurers’
ability to set premiums based on the health of the in-
sured. Those requirements bar individuals from obtain-
ing plans that do not meet the applicable criteria. And
they operate to increase the cost of obtaining insurance
for some individuals, such as relatively young and
 18

healthy individuals, who otherwise could obtain less ex-

pensive coverage.
The individual plaintiffs are self-employed individu-
als who are subject to the ACA’s insurance-reform pro-
visions and are ineligible for subsidies to purchase
health insurance. See J.A. 71, 75. One of the individu-
als, John Nantz, is the founder of a management-
consulting business. J.A. 71. He averred in his sworn
declaration that he is “young and in good health,” has
no dependents, and would prefer to obtain a high-
deductible plan priced according to his actuarial risks—
an option not available to him under the ACA. J.A. 73;
see J.A. 71-73. The other individual, Neill Hurley, is the
owner of a consulting business and is married with two
dependent children. J.A. 75. He averred that, as a re-
sult of the ACA, his monthly premiums have increased
dramatically, he has been unable to obtain a plan that
would accept all of his family’s health providers, and the
quality of services from providers that accept his fam-
ily’s new plan is lower than it previously was. J.A. 76-77.
Hurley stated that, were he “not limited to the plans
provided through the federal health insurance market-
place,” he “would purchase reasonably priced insurance
coverage that allowed [him] to access care locally from
[his] preferred service providers.” J.A. 77.
The individual plaintiffs’ factual averments of those
financial and other consequences stemming from the
ACA’s insurance-reform provisions were considered in
the district court, which adjudicated the plaintiffs’ rele-
vant claim in a summary-judgment posture without any
conflicting evidence. And neither the evidence itself nor
the district court’s decision to resolve the case on sum-
mary judgment was challenged in the court of appeals
or is challenged in this Court. See Lujan v. Defenders
 19

of Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach element”

of standing “must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence re-
quired at the successive stages of the litigation,” includ-
ing at the summary-judgment stage by “ ‘set[ting] forth’
by affidavit or other evidence ‘specific facts.’ ”) (citation
omitted). The facts plaintiffs aver establish a cogniza-
ble injury traceable to the insurance-reform provisions.
Because “[a]t least one plaintiff * * * ha[d] standing to
seek * * * relief ” from the application of the insurance-
reform provisions, Town of Chester, 137 S. Ct. at 1651,
the district court had jurisdiction over the plaintiffs’
suit to that extent. And because “at least one” party in
the appeal has standing to pursue that claim, neither
the court of appeals nor this Court need examine
whether the State plaintiffs may also seek the same re-
lief. Horne v. Flores, 557 U.S. 433, 445 (2009). Although
the court of appeals did not rely on that ground in hold-
ing that the district court had jurisdiction, that aspect
of its judgment may be affirmed “on any ground permit-
ted by the law and the record.” Dahda v. United States,
138 S. Ct. 1491, 1498 (2018) (citation omitted).
2. In challenging the insurance-reform provisions,
the individual plaintiffs may contend that (1) the indi-
vidual mandate—which also applies to them—is now in-
valid and (2) all other provisions of the ACA are inse-
verable from it. Although those contentions also impli-
cate other ACA provisions, they are the premises of the
individual plaintiffs’ challenge to the insurance-reform
provisions that injure them. The relevant claim of their
complaint alleged that the entire ACA “must be invali-
dated in whole” because the mandate is now “unconsti-
tutional” and “[t]he remainder of the ACA,” including
 20

the insurance-reform provisions, is categorically “non-

severable” from the mandate. J.A. 63; see J.A. 61-63.
In making those arguments, the individual plaintiffs
“seek[] to vindicate [their] own interests.” Phillips Pe-
troleum Co. v. Shutts, 472 U.S. 797, 805 (1985).
This case is effectively the inverse of Printz, where
the Court declined to allow the plaintiffs to leverage the
invalidity of a provision that did injure them to attack
other provisions that did not injure them. 521 U.S. at
935; see p. 16, supra. Here, the plaintiffs challenge the
insurance-reform provisions that do injure them, and
the basis for their challenge is that the insurance-
reform provisions are inseverable from the mandate,
which is invalid. This case thus mirrors Alaska Air-
lines, Inc. v. Brock, 480 U.S. 678 (1987). In that case,
several airlines contended that statutory provisions es-
tablishing certain protections for airline employees
should be invalidated because the statute also contained
an invalid legislative-veto provision, which the airlines
contended was inseverable from the employee-
protection provisions. Id. at 680-683. Although the
Court did not expressly address the airlines’ standing
to make that argument, it considered and rejected the
argument on the merits. Id. at 684-697.
Similarly, in the circumstances of this case, this Court
can address both merits questions presented without
determining whether the individual or State plaintiffs
independently have standing to challenge the individual
mandate. Regardless of whether the individual plain-
tiffs would have standing to challenge the mandate it-
self, the Court may pass upon their argument that the
mandate is invalid because that is also a premise of their
challenge to the insurance-reform provisions that injure
 21

them. 3 Or, to put it differently, to enter judgment for

the plaintiffs on that claim the district court necessarily
had to conclude both that the mandate is invalid and
that it is not severable from the remainder of the ACA.
This Court may now review those conclusions.
To be sure, no plaintiff could obtain—and no federal
court could issue—judicial relief against enforcement of
any ACA provision that has not been shown to injure
that plaintiff. See Lewis, 518 U.S. at 358. As the gov-
ernment explained in the court of appeals, although the
logic of the plaintiffs’ legal argument calls into doubt
the enforceability of myriad other ACA provisions, they
could not obtain a declaratory judgment or injunction
directed to those provisions unless they demonstrated
that such relief is necessary to redress their own cog-
nizable injuries. See Gov’t C.A. Br. 26-29. For example,
if this Court accepts both premises of the individual
plaintiffs’ legal argument challenging the insurance-
reform provisions, its reasoning would bear on the re-
mainder of the ACA as a matter of precedent. But any
relief issued as part of a judgment would be limited to
enforcement of the provisions that have been shown to
injure the individual plaintiffs.
For the same reasons, the Court may consider only
arguments by the plaintiffs that implicate the insurance-
reform provisions (and any other provisions that the
Court finds injure the plaintiffs). The Court thus may
consider the plaintiffs’ categorical argument that all
ACA provisions are inseverable from the individual
mandate, because that argument directly bears on the

3
Similarly, the Court need not decide whether the same would be
true of a plaintiff who is not subject to the individual mandate, be-
cause the individual plaintiffs here are subject to it.
 22

insurance-reform provisions. In the lower courts, how-

ever, the plaintiffs also argued that various particular
ACA provisions that do not appear to affect the individ-
ual plaintiffs are inseverable for more specific reasons
that do not apply to the insurance-reform provisions.
See, e.g., State Plaintiffs C.A. Br. 49-50 (arguing that
certain “minor” ACA provisions such as a medical-
device tax are inseverable because they no longer serve
their specific intended purposes without the mandate).
As the government observed at the petition stage,
the Court would have no occasion to consider such ar-
guments unless it first determined that a plaintiff has
standing to challenge those other provisions. See 19-840
Gov’t Br. in Opp. 17.
3. The intervenor States’ and House’s arguments
that the individual plaintiffs lack standing are substan-
tially premised on their merits arguments that the indi-
vidual mandate does not, in fact, impose any obligation
on the individual plaintiffs. See Intervenor States Br.
18; House Br. 20-23. Thus, the intervenor States and
the House do not actually contend that the Court must
refrain from determining the central question whether,
post-TCJA, the mandate must be construed to impose
an obligation to purchase insurance. Rather, they merely
contend that this Court must resolve the question under
the label of “jurisdiction” rather than “merits.” See Bol-
ivarian Republic of Venezuela v. Helmerich & Payne
Int’l Drilling Co., 137 S. Ct. 1312, 1319 (2017) (“[M]erits
and jurisdiction will sometimes come intertwined.”);
13B Charles Alan Wright et al., Federal Practice and
Procedure, § 3531.15 (3d ed. 2008) (“Despite the admon-
ition that Article III standing issues must be resolved
before approaching the merits,” some circumstances
“may justify a single inquiry, even if the conclusion that
 23

standing must be denied is indistinguishable from a rul-

ing on the merits.”); see also House Br. 22 (agreeing
that the Court can “determin[e] whether Section 5000A
required the individual plaintiffs to purchase insur-
ance”). Accordingly, this Court need not address hypo-
theticals regarding constitutional challenges to unre-
lated provisions that do not affect the plaintiffs. See
House Br. 33. Instead, the Court can and should
straightforwardly resolve the individual plaintiffs’ claim
that the mandate unconstitutionally requires them to
purchase insurance and is inseverable from the ACA’s
insurance-reform provisions that prohibit them from
obtaining the type of health insurance they would pre-
fer at a cost they would prefer. 4
II. THE INDIVIDUAL MANDATE IS NO LONGER A VALID
EXERCISE OF CONGRESS’S AUTHORITY
On the merits, the district court and the court of ap-
peals correctly determined that the individual mandate
is no longer a valid exercise of Congress’s legislative au-
thority in light of Congress’s elimination of the penalty
for noncompliance. J.A. 414-426; Pet. App. 185a-204a.
That conclusion follows from this Court’s reasoning in
National Federation of Independent Business v. Sebe-
lius, 567 U.S. 519 (2012), which held that the mandate
could be construed and sustained only as an exercise of
Congress’s taxing power based on a “functional” analy-
sis of the penalty, its statutory context, and its practical

4
For the same reasons, the individual plaintiffs have standing to
obtain an injunction barring enforcement against them of the insur-
ance reforms that injure them. The district court thus had authority
to instead enter a declaratory judgment of that scope. Cf. Samuel
L. Bray et al. Amicus Br. 2-4.
 24

operation. Id. at 565; see id. at 563-570. The same func-

tional analysis demonstrates that the NFIB Court’s
saving construction of the individual mandate as a tax is
no longer tenable. The intervenor States’ and House’s
contrary arguments in support of the mandate are in-
correct.
A. The Individual Mandate No Longer Can Be Construed
And Upheld As A Valid Exercise Of Congress’s Taxing
Power Because Congress Eliminated The Tax
1. In NFIB, this Court upheld the individual man-
date imposed by 26 U.S.C. 5000A solely on the ground
that the mandate, in combination with the shared-
responsibility payment Congress imposed for noncom-
pliance, was a valid exercise of Congress’s power to “lay
and collect Taxes,” U.S. Const. Art. I, § 8, Cl. 1. See
NFIB, 567 U.S. at 563-574. As the Chief Justice ob-
served in his separate opinion, that is not “[t]he most
straightforward reading of the mandate,” which “reads
more naturally as a command to buy insurance than as
a tax.” Id. at 562, 574 (opinion of Roberts, C.J.). “After
all, it states that individuals ‘shall’ maintain health in-
surance.” Id. at 562. But the Court adopted a saving
construction of the mandate—as providing the predi-
cate to a tax, see id. at 563-570 (opinion of the Court)—
because a majority of the Court concluded that “Section
5000A would * * * be unconstitutional if read as a com-
mand.” Id. at 575 (opinion of Roberts, C.J.); see id. at
547-561, 574; id. at 649-660 (joint dissent).
a. The Chief Justice explained that the Commerce
Clause does not authorize a command to buy insurance
because that Clause “grants Congress the power to ‘reg-
ulate Commerce,’ ” not the power “to compel it.” NFIB,
567 U.S. at 550, 555 (opinion of Roberts, C.J.) (quoting
U.S. Const. Art. I, § 8, Cl. 3); see id. at 548-558. The
 25

Clause’s “language,” he observed, “reflects the natural

understanding that the power to regulate assumes
there is already something to be regulated,” and thus
“[t]he power to regulate commerce presupposes the ex-
istence of commercial activity.” Id. at 550. The Chief
Justice concluded that the individual mandate, if con-
strued as a command, would exceed that authority be-
cause it “does not regulate existing commercial activ-
ity.” Id. at 552. Instead, he observed, the individual
mandate “compels individuals to become active in com-
merce by purchasing a product.” Ibid. For this reason,
the Chief Justice found inapposite the Court’s prece-
dents construing the Commerce Clause to authorize
Congress to regulate existing “activities that ‘have a
substantial effect on interstate commerce.’ ” Id. at 549
(quoting United States v. Darby, 312 U.S. 100, 119
(1941)).
The Chief Justice further concluded that the Neces-
sary and Proper Clause does not authorize Congress to
enact a command that individuals buy insurance.
NFIB, 567 U.S. at 558-561 (opinion of Roberts, C.J.).
That Clause’s grant of “power to ‘make all Laws which
shall be necessary and proper for carrying into Execu-
tion’ the powers enumerated in the Constitution,” id. at
559 (quoting U.S. Const. Art. I, § 8, Cl. 18), he observed,
“vests Congress with authority to enact provisions ‘in-
cidental to the enumerated power, and conducive to its
beneficial exercise,’ ” ibid. (quoting McCulloch v. Mar-
yland, 17 U.S. (4 Wheat.) 316, 418 (1819)) (brackets
omitted). Although this Court’s “jurisprudence under
the Necessary and Proper Clause * * * ha[s] been very
deferential to Congress’s determination that a regula-
tion is ‘necessary,’ ” ibid., the Chief Justice determined
that the individual mandate exceeded even those broad
 26

limits, id. at 560-561. Unlike enactments the Court had

previously sustained under the Necessary and Proper
Clause—which were all “exercises of authority deriva-
tive of, and in service to, a granted power”—he rea-
soned that “[t]he individual mandate * * * vests Con-
gress with the extraordinary ability to create the neces-
sary predicate to the exercise of an enumerated power.”
Id. at 560. The Chief Justice concluded that, “[e]ven if
the individual mandate is ‘necessary’ to the Act’s insur-
ance reforms, such an expansion of federal power is not
a ‘proper’ means for making those reforms effective.”
Ibid.
The four Justices who issued the joint dissent agreed
with the Chief Justice that the individual mandate could
not be sustained under the Commerce Clause or Neces-
sary and Proper Clause. NFIB, 567 U.S. at 649-660
(joint dissent). A majority of the Court thus concluded
that the mandate was not justified under either of those
Clauses and would have upheld the Eleventh Circuit’s
judgment to that extent. See id. at 572 (opinion of the
Court) (“The Court today holds that our Constitution
protects us from federal regulation under the Com-
merce Clause so long as we abstain from the regulated
activity.”).
b. A different majority of the Court determined
that, to save the individual mandate from unconstitu-
tionality, the mandate could be construed as an exercise
of Congress’s taxing power. NFIB, 567 U.S. at 563-574.
As the Chief Justice observed, the federal government
had argued in the alternative that the “mandate c[ould]
be regarded as establishing a condition—not owning
health insurance—that triggers a tax—the required
payment to the” Internal Revenue Service (IRS). Id. at
 27

563 (opinion of Roberts, C.J.). The government con-

tended that, because the ACA imposed as a “conse-
quence” for “not maintain[ing] health insurance” an ob-
ligation to “make an additional payment to the IRS
when [a person] pays his taxes,” the mandate could be
viewed “not [as] a legal command to buy insurance” but
as “in effect just a tax hike on certain taxpayers who do
not have health insurance.” Id. at 562-563. And because
“every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality,” id. at
563 (quoting Hooper v. California, 155 U.S. 648, 657
(1895)), the Court considered that alternative reading,
see id. at 563-574.
On that issue, the Court concluded (in an opinion by
the Chief Justice) that the shared-responsibility pay-
ment for those who do not maintain coverage prescribed
by the individual mandate could “reasonably be charac-
terized as a tax.” NFIB, 567 U.S. at 574; see id. at
563-574; 26 U.S.C. 5000A(b)(1) and (3), (c)(1) and (2).
The Court acknowledged that the ACA “describe[d] the
payment as a ‘penalty,’ not a ‘tax.’ ” NFIB, 567 U.S. at
564. But it explained that the “label” alone was not dis-
positive and that the Court’s precedents called for a
“functional approach” that focuses on “practical charac-
teristics” of an enactment to determine whether it can
be sustained as a tax. Id. at 564-565. “The same analy-
sis,” the Court held, “suggests that the shared respon-
sibility payment may for constitutional purposes be con-
sidered a tax” on those who lack insurance, not as a
sanction for violating a command. Id. at 566; see id. at
563-570.
Applying that “functional approach,” the NFIB
Court explained that the shared-responsibility payment
“looks like a tax in many respects.” 567 U.S. at 563, 565.
 28

Among other things, the Court observed that it was

“paid into the Treasury by ‘taxpayer[s]’  when they file
their tax returns”; “its amount [wa]s determined by
such familiar factors as taxable income, number of de-
pendents, and joint filing status”; it was “enforced by”
the IRS, which “must assess and collect it ‘in the same
manner as taxes’ ”; and it “yield[ed] the essential fea-
ture of any tax,” i.e., “[i]t produce[d] at least some rev-
enue for the Government,” and was “expected to raise
about $4 billion per year by 2017.” Id. at 563-564 (cita-
tion omitted; first set of brackets in original). The
Court also noted that the shared-responsibility pay-
ment resembled financial obligations the Court had pre-
viously upheld as taxes (rather than penalties) in other
respects, including its size, the lack of a scienter re-
quirement, and limitations on the means by which the
IRS could enforce it. See id. at 566. Because of the na-
ture and operation of the financial obligation Section
5000A imposed for noncompliance with the mandate,
the Court held, Ҥ 5000A need not be read to do more
than impose a tax,” which “Congress had the power to
impose.” Id. at 570. The Court further concluded that
the tax also comported with the Constitution’s other
limitations on taxes. Id. at 570-574.
2. As the courts below correctly determined, the
saving construction of Section 5000A that the Court
adopted in NFIB is no longer tenable in light of Con-
gress’s subsequent action in the TCJA. See J.A.
419-426, Pet. App. 139a-141a. Because it cannot reason-
ably be interpreted as a tax, the mandate in its current
form exceeds Congress’s enumerated powers.
As amended, Section 5000A preserves the “[r]equire-
ment to maintain minimum essential coverage.” 26 U.S.C.
5000A (emphasis omitted). And it continues to use the
 29

language of legal command, specifying that covered in-

dividuals “shall * * * ensure” that they obtain “mini-
mum essential coverage.” 26 U.S.C. 5000A(a). In its
current form, as when the Court considered the provi-
sion in NFIB, Section 5000A thus is most “naturally”
read “as a command to buy insurance.” NFIB, 567 U.S.
at 574 (opinion of Roberts, C.J.); see id. at 562.
Critically, however, the linchpin of NFIB’s saving
construction of the mandate as merely a predicate for
tax liability, see 567 U.S. at 563-570, has been elimi-
nated. Section 5000A cannot be read today as “estab-
lishing a condition—not owning health insurance—that
triggers a tax,” id. at 563 (opinion of Roberts, C.J.), be-
cause the tax no longer exists. In the TCJA, effective
January 1, 2019, Congress replaced the existing per-
centage of income used to calculate the shared-
responsibility payment with “Zero percent,” and it set
the figure used to calculate the minimum penalty (the
“applicable dollar amount,” 26 U.S.C. 5000A(c)(3)(A)
and (D) (2012 & Supp. V 2017)) at “$0.” TCJA § 11081,
131 Stat. 2092.
As the court of appeals explained, the same func-
tional analysis that the Court applied in NFIB to con-
clude that the mandate could reasonably be interpreted
as the basis for a tax therefore compels the opposite
conclusion today. See J.A. 419-420. A penalty of zero
does not “look[ ] like a tax” in any “respect[ ].” NFIB,
567 U.S. at 563. Under Section 5000A as it now stands,
nothing is “paid into the Treasury by ‘taxpayers’  when
they file their tax returns.” Ibid. (brackets omitted).
Nothing is “determined by such familiar factors as tax-
able income, number of dependents, and joint filing sta-
tus,” because the amount owed is always zero. Ibid.
The mandate is no longer “enforced by” the IRS; it is
 30

not “assess[ed] and collect[ed]” at all, much less “ ‘ in the

same manner as taxes.’ ” Id. at 563-564 (citation omit-
ted). And, perhaps most significantly, it does not “yield[ ]
the essential feature of any tax,” because it does not—
indeed, under the current statute’s terms, cannot—
“produce[ ]” any “revenue for the Government.” Id. at
564 (emphasis added).
Without any financial obligation imposed on those
who do not maintain the “minimum essential coverage”
that Section 5000A “[r]equire[s],” 26 U.S.C. 5000A (em-
phasis omitted), Section 5000A as it stands today cannot
reasonably be construed as “impos[ing] a tax” for failing
to do so. NFIB, 567 U.S. at 570. The mandate thus no
longer can be upheld as the predicate to an “exaction”
that “Congress had the power to impose * * * under
the taxing power.” Ibid. Instead, absent any tax for
which it can serve as a trigger, the mandate’s direction
that a covered individual “shall * * * ensure that the
individual * * * is covered under minimum essential
coverage,” 26 U.S.C. 5000A(a), can be understood only
as a straightforward command to maintain such cover-
age. The statute thus must be “read to declare that fail-
ing to” maintain minimum essential coverage “is unlaw-
ful.” NFIB, 567 U.S. at 568. As this Court held in
NFIB, that command is unconstitutional. Id. at 572.
3. The intervenor States and House argue that
NFIB definitively interpreted Section 5000A as afford-
ing a choice between maintaining insurance coverage
and paying a tax—not as a freestanding command to
maintain coverage—and that the TCJA did not abro-
gate that interpretation. Intervenor States Br. 26;
House Br. 35. They observe that the only change the
TCJA made to Section 5000A was to reduce the amount
of the shared-responsibility payment to zero, leaving
 31

the rest of the provision intact—including the text of the

mandate and the text imposing a penalty on individuals
who do not comply with the mandate’s requirement.
See Intervenor States Br. 28; House Br. 36. But that
targeted amendment fundamentally changed the stat-
ute by removing the “essential feature” on which
NFIB’s interpretation rested. 567 U.S. at 564. The
Court’s construction of the mandate as the predicate to
a tax hinged critically on the existence of the “exaction”
that produced “revenue.” Id. at 564; see id. at 563-570.
Eliminating that exaction renders NFIB’s interpreta-
tion inapplicable. Under the “functional approach” that
this Court’s precedents prescribe and that NFIB applied,
567 U.S. at 565, reducing the shared-responsibility pay-
ment amount to zero for all individuals in all circum-
stances going forward is the equivalent of eliminating
the payment altogether. Just as the Court determined
that “practical” considerations supported classifying
the shared-responsibility payment as a tax despite the
statute’s express description of that payment as a “pen-
alty,” id. at 564-565, so too the practical reality follow-
ing the TCJA is that Section 5000A no longer imposes
any tax on any individual.
The intervenor States nevertheless insist that Sec-
tion 5000A can “still be upheld as a lawful exercise of
Congress’s taxing powers, albeit one whose practical
application is currently suspended.” Intervenor States
Br. 32. They contend that the statute “retains many of
the features that NFIB looked to in construing it as a
tax,” including “references to taxable income, number
of dependents, and joint filing status” in the formula for
calculating the payment. Id. at 33. But the TCJA elim-
inated entirely “the essential feature of any tax” that
NFIB identified—the “produc[tion] [of ] * * * revenue.”
 32

567 U.S. at 564. Indeed, the TCJA rendered parameters

for calculating and enforcing the shared-responsibility
payment irrelevant. The references to income, depend-
ents, and filing status in the formula are immaterial be-
cause, regardless of those variables, the formula now cal-
culates the same result—a payment of zero—for every in-
dividual.
The intervenor States also attempt to analogize Sec-
tion 5000A sans penalty to taxes that yield no or little
revenue. Intervenor States Br. 32-34. The intervenor
States point to taxes that have delayed effective dates
or are suspended temporarily and taxes that are in force
but yield no revenue because no taxpayer engages in the
conduct that triggers the tax (e.g., because the tax itself
deters the conduct, or the conduct is also a criminal of-
fense). Ibid. Those analogies are inapt. Unlike delayed
or suspended taxes that will fail to generate revenue in
a particular period, Section 5000A permanently elimi-
nates the duty to pay a penalty. It will never again gen-
erate tax revenue absent a further Act of Congress re-
instating the penalty. And unlike taxes that produce no
revenue because no taxpayer engages in the taxed con-
duct, Section 5000A generates no revenue regardless of
how many individuals fail to maintain the insurance cov-
erage required by the mandate.
In all events, the intervenor States’ reading of Sec-
tion 5000A as affording individuals a choice between
maintaining insurance coverage and not maintaining
coverage—with no tax liability either way—cannot jus-
tify upholding the mandate as an exercise of Congress’s
power to “lay and collect Taxes,” U.S. Const. Art. I, § 8,
Cl. 1. Similarly, the suggestion that “the greater power
to enact a statute imposing a tax surely includes a lesser
 33

power to reduce the tax to zero while leaving its struc-

ture in place,” Intervenor States Br. 33-34, reduces to
the illogical contention that Congress may exercise its
taxing power without actually imposing any taxes.
B. The Individual Mandate Cannot Be Upheld As A Preca-
tory Expression Of Congressional Sentiment Or As A
Valid Exercise Of Congress’s Authority Under The Nec-
essary And Proper Clause Or The Commerce Clause
Tellingly, although they claim that the TCJA did not
alter the constitutional analysis set out by this Court in
NFIB, the intervenor States and House primarily de-
fend the amended statute on grounds other than the
power to impose taxes.
1. The intervenor States and House’s lead argument
is that the mandate is hortatory and thus need not rest
on any source of lawmaking power. For example, the
intervenor States argue that Congress enacted a “prec-
atory provision” that is permissible “even where it ad-
dresses a subject on which Congress could not legislate
with binding effect.” Intervenor States Br. 32; see
House Br. 35-36. The intervenor States and House thus
interpret the mandate to lack any legal effect.
That characterization of the individual mandate
cannot be squared with the statutory text. Section
5000A(a) states that “[a]n applicable individual shall
* * * ensure that the individual * * * is covered under
minimum essential coverage for such month,” 26 U.S.C.
5000A(a) (emphasis added)—not that the individual
“should” do so or that Congress would prefer that they
do so. “[T]he word ‘shall’ usually connotes a require-
ment,” Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1977 (2016), and it “normally creates an
obligation impervious to judicial discretion,” ibid. (quot-
ing Lexecon Inc. v. Milberg Weiss Bershad Hynes &
 34

Lerach, 523 U.S. 26, 35 (1998)). Nothing in Section

5000A(a) indicates that Congress diverged from that or-
dinary understanding of the term, and “[t]he most
straightforward reading of the mandate is that it com-
mands individuals to purchase insurance.” NFIB,
567 U.S. at 562 (opinion of Roberts, C.J.). Law-abiding
citizens must comply with statutory commands whether
or not any specific penalties are imposed for noncompli-
ance.
Had Congress instead intended the mandate merely
to encourage maintaining coverage or to convey Con-
gress’s own policy views, it easily could have done so—
as illustrated by statutes the intervenor States and
House cite, Intervenor States Br. 32; House Br. 35-36.
In 4 U.S.C. 8, Congress provided that “[n]o disrespect
should be shown to the flag of the United States of
America,” and it set forth more than a dozen specific
practices that variously either “should” or “should
never” be used in displaying the flag. Ibid. In 22 U.S.C.
7674, Congress stated that “[i]t is the sense of Congress
that United States businesses should be encouraged to
provide assistance to sub-Saharan African countries to
prevent and reduce the incidence of HIV/AIDS in sub-
Saharan Africa,” and it identified one particular mech-
anism for providing such assistance that “United States
businesses should be encouraged to consider.” Ibid.
And in 15 U.S.C. 7807, Congress provided that “States
should enact the Uniform Athlete Agents Act of 2000.”
Each of those provisions contrasts starkly with Section
5000A(a), which states what covered individuals “shall”
do.
At bottom, the contention of the intervenor States
and House is that, without any enforceable sanction, the
practical effect of Section 5000A is equivalent to a
 35

sense-of-the-Congress resolution. But Section 5000A’s

text cannot fairly be construed as a suggestion. It most
naturally conveys a “command.” NFIB, 567 U.S. at 562
(opinion of Roberts, C.J.). And the reading of the man-
date as a predicate to a tax that the Court adopted in
NFIB based on context and the saving canon is no
longer possible. See pp. 23-33, supra. As Section 5000A
now stands, it must be read as creating a legal obliga-
tion that Congress lacks authority to impose.
2. The House alternatively argues that if the individ-
ual mandate “requires an enumerated power, the Court
should still uphold it because it is necessary and proper
to the exercise of Congress’s power to lay and collect
taxes,” as “it retains the architecture of the tax upheld
in NFIB.” House Br. 37; see Intervenor States Br. 33.
That theory—which permits the mandate’s continued
existence based solely on the hypothetical possibility
that Congress might take future action—is incorrect.
Retaining the individual mandate is unnecessary to en-
able Congress to reestablish a tax that currently does
not exist. With or without the mandate, reinstating the
tax would require future legislative action by Congress.
And because this Court already found that the mandate
would be unconstitutional if construed as a freestanding
command, leaving the mandate in place purportedly to
streamline hypothetical future legislation would be pro-
foundly improper.
3. Finally, neither the intervenor States nor the
House renews arguments made below that the individ-
ual mandate can be sustained under Congress’s com-
merce power. See House C.A. Br. 40. That implicit con-
cession is proper. This Court in NFIB held that neither
the Commerce Clause nor the Necessary and Proper
Clause authorized Congress to impose a legally binding
 36

command to obtain health insurance as a freestanding

regulation. See 567 U.S. at 547-561, 574 (opinion of
Roberts, C.J.); id. at 649-660 (joint dissent). That con-
clusion rested on the nature and effects of what Con-
gress sought to regulate—failure to maintain insurance
coverage—not that the sanction it had imposed was too
great or that the mandate would have been lawful with
a smaller or no shared-responsibility payment. See id.
at 572 (opinion of the Court) (“The Court today holds
that our Constitution protects us from federal regula-
tion under the Commerce Clause so long as we abstain
from the regulated activity.”).
III. THE INDIVIDUAL MANDATE IS NOT SEVERABLE
FROM THE REST OF THE ACT
Where a statutory provision is unconstitutional, de-
termining whether the remainder of the statutory
scheme should remain in effect requires an inquiry into
legislative intent. The severability inquiry typically re-
quires asking “whether Congress would have wanted
the rest of [a statute] to stand, had it known that” one
or more particular provisions of the statute would be
held invalid. NFIB, 567 U.S. at 587 (opinion of Roberts,
C.J.). While the “normal rule is that partial, rather than
facial, invalidation is the required course,” Free Enter.
Fund v. Public Co. Accounting Oversight Bd., 561 U.S.
477, 508 (2010) (citation and internal quotation marks
omitted), courts must deem provisions inseverable
where doing so implements Congress’s evinced intent—
for example, if the provisions’ continued enforcement
would result in “a scheme sharply different from what
Congress contemplated,” Murphy, 138 S. Ct. at 1482.
After all, courts “cannot rewrite a statute and give it an
effect altogether different from that sought by the
measure viewed as a whole.” Ibid. (citation omitted).
 37

A. The Individual Mandate Is Inseverable From The

Guaranteed-Issue And Community-Rating Provisions
1. Even though the guaranteed-issue and community-
rating provisions are constitutionally valid when stand-
ing on their own, it is evident that Congress would not
“have wanted” them to stand without the individual
mandate. See NFIB, 567 U.S. at 587 (opinion of Rob-
erts, C.J.).
a. That these provisions are inseverable is evident
from the enacted text of the ACA, where Congress ex-
pressly found that the individual mandate is essential to
the operation of the guaranteed-issue and community-
rating provisions. See Pet. App. 209a (“Those findings
are not mere legislative history—they are enacted text
that underwent the Constitution’s requirements of bi-
cameralism and presentment.”). “[I]f there were no re-
quirement” to purchase insurance, Congress concluded,
“many individuals would wait to purchase health insur-
ance until they needed care.” 42 U.S.C. 18091(2)(I).
But “[b]y significantly increasing health insurance cov-
erage,” the mandate, “together with the other provi-
sions of this Act, will minimize this adverse selection
and broaden the health insurance risk pool to include
healthy individuals, which will lower health insurance
premiums.” Ibid. For that reason, Congress concluded,
the individual mandate is “essential to creating effective
health insurance markets in which improved health in-
surance products that are guaranteed issue and do not
exclude coverage of pre-existing conditions can be
sold.” Ibid. (emphasis added); see 42 U.S.C. 18091(2)(J)
(“The requirement is essential to creating effective
health insurance markets that do not require under-
writing and eliminate its associated administrative
costs.”).
 38

In expressly finding a critical link between these

three provisions, Congress looked to States’ prior expe-
riences in restructuring their health-insurance laws.
Congress was well aware, in particular, that in some
States guaranteed-issue and community-rating re-
quirements “had an unintended consequence: They en-
couraged people to wait until they got sick to buy insur-
ance.” King v. Burwell, 135 S. Ct. 2480, 2485 (2015).
The “adverse selection” of disproportionately ill people
purchasing insurance forced insurers to raise premi-
ums, which in turn resulted in “even more people wait[ing]
until they became ill to buy it.” Id. at 2485-2486. Congress
was concerned about the resulting “economic ‘death spi-
ral,’ ” and thus looked to the experience of Massachusetts,
which paired guaranteed-issue and community-rating pro-
visions with tax credits and a requirement to purchase
health insurance. Id. at 2486; see 42 U.S.C. 18091(2)(D)
(explicitly relying on Massachusetts’ experience).
b. This Court has repeatedly recognized that Con-
gress viewed the guaranteed-issue and community-
rating provisions as necessarily intertwined with the in-
dividual mandate. All nine Justices indicated as much
in NFIB. See 567 U.S. at 548 (opinion of Roberts, C.J.)
(“The guaranteed-issue and community-rating reforms
* * * exacerbate” the “problem” of “healthy individuals
who choose not to purchase insurance to cover potential
health care needs,” and “threaten to impose massive
new costs on insurers. * * * The individual mandate
was Congress’s solution to these problems.”); id. at
597-598 (Ginsburg, J., concurring in part, concurring in
the judgment in part, and dissenting in part) (“[T]hese
two provisions, Congress comprehended, could not
work effectively unless individuals were given a power-
ful incentive to obtain insurance. * * * [G]uaranteed-
 39

issue and community-rating laws alone will not work.”);

id. at 698 (joint dissent) (“[I]mpos[ing] risks on insur-
ance companies and their customers”—including the
community-rating and guaranteed-issue provisions—
“[w]ithout the Individual Mandate * * * would under-
mine Congress’ scheme of shared responsibility.”) (inter-
nal quotation marks omitted). Indeed, the government’s
briefing in NFIB agreed that both the guaranteed-issue
and community-rating provisions were inseverable from
the individual mandate. Gov’t Br. on Severability at
44-55, NFIB, supra (Nos. 11-393 and 11-400).
And in King, this Court again acknowledged that
“[t]hese three reforms are closely intertwined” and that
“Congress found that the guaranteed issue and commu-
nity rating requirements would not work without the
coverage requirement.” 135 S. Ct. at 2487.
c. The TCJA does not alter what Congress said in
the ACA about how these three provisions are inextri-
cably intertwined. While the TCJA eliminated the man-
date’s tax penalty, it did not eliminate the mandate it-
self, which still “[r]equire[s]” that individuals “shall”
purchase health insurance. 26 U.S.C. 5000A(a) (empha-
sis omitted). And critically, the TCJA left in place Con-
gress’s findings that the mandate’s “requirement” to
purchase insurance is “essential” to the operation of
the guaranteed-issue and community-rating provisions.
42 U.S.C. 18091(2)(I). By retaining the mandate (even
without a penalty) and leaving undisturbed its prior ex-
press findings, Congress adhered to the view that the in-
dividual mandate and guaranteed-issue and community-
rating provisions are interrelated. That indicates Con-
gress’s intent: Congress would not have “wanted” the
guaranteed-issue and community-rating provisions “to
 40

stand alone,” either in 2010 or in 2017. Murphy, 138

S. Ct. at 1483.
2. The intervenor States and House push back, ar-
guing that the 2017 Congress necessarily intended the
guaranteed-issue and community-rating provisions to
remain even if the mandate were invalidated because
Congress left those provisions (and the rest of the ACA)
intact while eliminating the mandate’s penalty. See In-
tervenor States Br. 36-37; House Br. 40-42. But this ar-
gument overlooks that Congress retained the mandate
itself, that Congress in 2017 did not expressly address
what should happen if the mandate were later judicially
invalidated, and that Congress instead left in place the
2010 findings that the mandate is essential to the
guaranteed-issue and community-rating provisions. And
although the intervenor States and House contend that
Members of Congress would have been indifferent if the
mandate were invalidated after the penalty was elimi-
nated, they provide no evidence that Congress as a
whole shared their pessimistic view that most American
citizens would flout a mandatory requirement to pur-
chase insurance simply because that legal duty is not
backed by an enforcement penalty.
Even if that is what some Members of Congress
would have wanted, it is not what Congress as a whole
did. Congress left undisturbed the ACA’s clear state-
ment that the individual mandate is essential to the
guaranteed-issue and community-rating provisions.
Although the intervenor States and House do not label
it this way, they are in effect arguing that Congress re-
pealed its existing findings in Section 18091(2) by impli-
cation. But “repeals by implication are not favored and
will not be presumed unless the intention of the legisla-
ture to repeal is clear and manifest,” National Ass’n of
 41

Home Builders v. Defenders of Wildlife, 551 U.S. 644,

662 (2007) (brackets, citation, and internal quotation
marks omitted), and “will only be found where provi-
sions in two statutes are in irreconcilable conflict, or
where the latter Act covers the whole subject of the ear-
lier one and is clearly intended as a substitute,” Branch
v. Smith, 538 U.S. 254, 273 (2003) (opinion of Scalia, J.)
(citation and internal quotation marks omitted). Here,
Congress as a whole has nowhere demonstrated a clear
and manifest intent to overturn its prior findings that
the individual mandate and the guaranteed-issue and
community-rating provisions must operate together.
This is so because the elimination of the mandate’s pen-
alty neither conflicts with nor substitutes for the ACA’s
findings about the relationship between the mandate’s
requirement and the insurance-reform provisions. The
presumption against implied repeals thus requires the
Court to give effect to the ACA’s statutory findings.
The intervenor States and House try to minimize the
import of the statutory findings by suggesting that they
were designed for a different purpose or that they have
been superseded by subsequent events. Intervenor
States Br. 41-44; House Br. 44-46. As to the first point,
this Court should not ignore the factual findings simply
because they were not specifically directed toward sev-
erability; as part of the ACA’s text, they remain an im-
portant indicator of Congress’s understanding of whether
these various provisions are capable of functioning in-
dependently. As to the second point, neither the estab-
lishment and development of insurance marketplaces
nor the change to the mandate’s penalty sheds any light
on Congress’s intent regarding the interplay among the
relevant provisions—especially given that Congress
originally structured the mandate’s penalty to change
 42

over time, see 26 U.S.C. 5000A(c)(2)(B) and (3)(A)-(B)

(2012).
More generally, the intervenor States and House
contend that the intent of the 2010 Congress should be
ignored because the constitutional infirmity did not
arise until 2017. But as they properly recognize, the re-
peal of the tax was not itself unconstitutional; rather, it
is the interaction between the ACA and TCJA that ren-
ders the individual mandate invalid. Thus, the focus is
not exclusively on the 2010 Congress or the 2017 Con-
gress, as the current statutory scheme is the product of
enactments by both bodies. And the combined intent is
clear: the 2010 Congress viewed the operation of the man-
date as inextricably intertwined with the operation of the
guaranteed-issue and community-rating provisions, and
the 2017 Congress did not disturb that understanding—
but rather ratified it—by retaining the findings while
eliminating the penalty.
Ultimately, the findings in 42 U.S.C. 18091(2) are no
different from a targeted inseverability clause. The
government in NFIB recognized as much. See Gov’t Br.
on Severability at 52, NFIB, supra (Nos. 11-393 and
11-400) (“The question of severability is one of congres-
sional intent, and Congress expressly found that the
minimum coverage provision is ‘essential’ to the
guaranteed-issue reforms. 42 U.S.C.A. 18091(a)(2)(I).”).
If Congress had framed its findings as an inseverability
clause, this Court would apply it—whether or not the
Court independently believed that Congress’s expres-
sion of intent made sense or achieved the wisest legisla-
tion. Cf. Zobel v. Williams, 457 U.S. 55, 64-65 (1982)
(explaining the Court “need not consider” other alter-
natives that the legislature could have adopted where
 43

“the legislation expressly provides that invalidation of

any portion of the statute renders the whole invalid”).
Here, Congress did not speak in general terms about
the severability of provisions or applications. It instead
addressed a specific issue that is directly relevant to
severability: that the individual mandate is essential to
the guaranteed-issue and community-rating provisions.
That only makes Congress’s intent more clear. Giving
effect to Congress’s statutorily codified expression of
its intent may or may not achieve what its Members ex-
pected in 2017 when they amended the ACA—
depending on whether they perceived the issue and
wanted the findings to control—and there were likely
Members on all sides. But this Court would not pause
over Members’ subjective intentions in applying an ex-
press inseverability clause, and the result should be no
different when Congress expresses its intent with re-
spect to a specific issue that is directly relevant to sev-
erability and then leaves that intent undisturbed during
subsequent amendments.
B. The ACA’s Remaining Provisions Are Inseverable
1. Once the individual mandate and the guaranteed-
issue and community-rating provisions are invalidated,
the remainder of the ACA should not be allowed to re-
main in effect. As noted above, this Court may consider
the inseverability of, and award relief concerning, other
ACA provisions only insofar as such provisions injure
the plaintiffs. But the government will address the
whole Act here, both because at least some other insur-
ance reforms do injure the individual plaintiffs, see pp.
16-19, supra, and because an argument for the insever-
ability of those provisions likewise applies to other ACA
provisions. And the Court may benefit from a complete
 44

analysis should it conclude that additional discrete pro-

visions of the ACA injure any of the plaintiffs.
As explained by the joint dissenters in NFIB—the
only Justices to reach the issue of whether the rest
of the Act could be severed from the individual man-
date and the guaranteed-issue and community-rating
provisions—the ACA’s interlocking web of provisions
cannot function as Congress intended absent that core
triad. 567 U.S. at 691-707 (joint dissent). Eliminating
those three provisions would in turn “rewrite [the] stat-
ute,” Murphy, 138 S. Ct. at 1482 (citation omitted), by
fundamentally altering the ACA’s other insurance re-
forms, which were premised on the availability of uni-
form plans to all potential purchasers of insurance in
the individual and small-group markets. As even the
amicus curiae appointed in NFIB to argue in favor of
severability acknowledged, “the effects of invalidating
the guaranteed issue and community rating provisions
could not easily be limited to just those provisions.”
Court-Appointed Amicus Br. Supporting Complete
Severability at 46, NFIB, supra (Nos. 11-393 and
11-400).
For example, the ACA created insurance “exchanges”
where individuals could purchase insurance. “A key
purpose of an exchange is to provide a marketplace of
insurance options where prices are standardized re-
gardless of the buyer’s pre-existing conditions.” NFIB,
567 U.S. at 702 (joint dissent). Without the community-
rating provisions, which generally prohibit altering the
price of insurance based on the buyer’s health condition,
“[t]he prices would vary from person to person,” and
“the exchanges cannot operate in the manner Congress
intended.” Id. at 702-703. And without the insurance
 45

exchanges, there would be no basis for requiring em-

ployers to make a payment to the federal government if
they do not offer insurance to employees and those em-
ployees then purchase insurance on the exchange. See
26 U.S.C. 4980H; NFIB, 567 U.S. at 703 (joint dissent).
The ACA’s tax credits suffer a similar fate absent the
three central provisions. As King recognized, “the
guaranteed issue and community rating requirements
* * * only work when combined with the coverage re-
quirement and the tax credits.” 135 S. Ct. at 2494.
“Without the community-rating insurance regulation,
* * * the average federal subsidy could be much higher;
for community rating greatly lowers the enormous pre-
miums unhealthy individuals would otherwise pay.”
NFIB, 567 U.S. at 701 (joint dissent). “The result would
be an unintended boon to insurance companies, an un-
intended harm to the federal fisc, and a corresponding
breakdown of the ‘shared responsibility’ * * * that
Congress intended.” Id. at 702.
Similarly, the ACA included a panoply of other insur-
ance regulations and taxes, such as coverage limits, re-
quirements to cover dependent children, and re-
strictions on high-cost insurance plans. See NFIB,
567 U.S. at 698 (joint dissent) (citing 26 U.S.C. 4980I;
42 U.S.C. 300gg-11, 300gg-14(a)). These regulations all
indisputably impose “higher costs for insurance compa-
nies.” Ibid. The ACA’s design contemplated that these
costs would be offset in part by the individual mandate,
which would increase the number of individuals enrolled
in insurance, and by federal subsidies. See id. at 698-699.
Allowing these provisions to continue in effect without
the interdependent provisions already discussed would
create a potentially unstable insurance market—unlike
anything that Congress intended. Id. at 699.
 46

As the joint dissent also explained, the ACA’s cost-

saving measures are linked to provisions that reduce
uncompensated care. The ACA “reduces payments by
the Federal Government to hospitals by more than $200
billion over 10 years.” NFIB, 567 U.S. at 699 (joint dis-
sent). These reductions were palatable only because
other provisions in the ACA were expected to lead to
“[n]ear-universal coverage” that would “offset the gov-
ernment’s reductions in Medicare and Medicaid reim-
bursements to hospitals.” Ibid. There is no indication
that Congress would have cut payments without provid-
ing hospitals with an opportunity to receive offsetting
revenue, particularly where doing so could have dra-
matic effects—including raising the costs of care and in-
surance premiums borne by consumers—and contra-
vene the Act’s goals. See id. at 699-700.
These reductions in federal payments were in turn
designed to “offset the $434-billion cost of the Medicaid
Expansion,” NFIB, 567 U.S. at 700 (joint dissent), and
there is no indication that Congress would have enacted
legislation that greatly increased the federal deficit if
the reductions in federal spending were invalidated.
There is no tension between this conclusion and the
NFIB majority’s conclusion that the Medicaid expan-
sion should be allowed to take effect even if it could not
be a condition on the remainder of a State’s Medicaid
allotment. A less extensive expansion of Medicaid than
Congress intended does not contravene Congress’s ob-
jectives in the same way as would the system-wide re-
balancing of costs and benefits that the intervenor
States and House urge here.
That leaves the ACA’s comparatively “minor,” ancil-
lary provisions. NFIB, 567 U.S. at 704 (joint dissent).
 47

Some of those provisions interact with the major provi-

sions just discussed, and thus would not act in the man-
ner that Congress intended once the major provisions
are invalidated. See id. at 705 (discussing tax increases
that offset costs imposed by health-insurance reforms).
There are other provisions that might be able to operate
in the manner that Congress intended when viewed in
isolation, but the question of congressional intent as to
those provisions is complicated by the sprawling nature
of the ACA. In this unique context, comparatively “mi-
nor,” ancillary provisions that were tacked on to the bill
should be held inoperative once the core provisions have
been struck down because “[t]here is no reason to be-
lieve that Congress would have enacted them inde-
pendently.” NFIB, 567 U.S. at 705 (joint dissent). 5
2. The court of appeals criticized the district court
for failing to engage in a sufficiently detailed inquiry
into the various aspects of the statute. J.A. 441-445.
But in NFIB four Justices of this Court determined that
a similar inquiry was sufficient. No further analysis is
necessary; once the individual mandate and the
guaranteed-issue and community-rating provisions are
invalidated, the remainder of the ACA cannot survive.
For their part, the intervenor States and House em-
phasize that Congress declined to repeal additional pro-
visions of the ACA before eliminating the mandate’s
penalty. See Intervenor States Br. 46-47; House Br.
41-42. But this history does not speak to the relevant

5
The House asserts that “[t]he United States made a diametri-
cally opposed argument” in Seila Law LLC v. CFPB, No. 19-7 (ar-
gued Mar. 3, 2020). House Br. 49 n.11. But that is clearly incorrect
because Congress in the Dodd-Frank Wall Street Reform and Con-
sumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376, included
an express severability clause, 12 U.S.C. 5302.
 48

question here—namely, what Congress would have

wanted if the mandate itself were invalidated as well as
the guaranteed-issue and community-rating provisions.
On that question, the best guides for this Court’s anal-
ysis are the substantive connections between the vari-
ous provisions of the ACA as recognized by the joint dis-
senters in NFIB. If this Court concludes that, notwith-
standing the legislative background invoked by the in-
tervenor States and House, Congress’s statutory find-
ings tie the invalid mandate to the guaranteed-issue and
community-rating provisions, then it necessarily fol-
lows that the rest of the ACA must also fall—which is a
text- and structure-based conclusion that the invoked
legislative background cannot undermine.
 49
CONCLUSION
The judgment of the court of appeals should be af-
firmed insofar as it held that the individual mandate is
unconstitutional, and this Court should further hold
that the insurance provisions injuring the individual
plaintiffs are inseverable from the mandate and the re-
mainder of the Act. This case should then be remanded
for consideration of the scope of appropriate relief re-
dressing plaintiffs’ injuries.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
JUNE 2020
 APPENDIX

1. U.S. Const. Art. I, § 8, Cl. 1 provides:

The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and pro-
vide for the common Defence and general Welfare of the
United States; but all Duties, Imposts and Excises shall
be uniform throughout the United States;

2. U.S. Const. Art. I, § 8, Cl. 3 provides:

To regulate Commerce with foreign Nations, and among
several States, and with Indian Tribes;

3. U.S. Const. Art. I, § 8, Cl. 18 provides:

To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Gov-
ernment of the United States, or in any Department or
Officer thereof.

4. 26 U.S.C. 5000A provides:

Requirement to maintain minimum essential coverage
(a) Requirement to maintain minimum essential
coverage
An applicable individual shall for each month begin-
ning after 2013 ensure that the individual, and any de-
pendent of the individual who is an applicable individual,

(1a)
 2a

is covered under minimum essential coverage for such

month.
(b) Shared responsibility payment
(1) In general
If a taxpayer who is an applicable individual, or an
applicable individual for whom the taxpayer is liable
under paragraph (3), fails to meet the requirement of
subsection (a) for 1 or more months, then, except as
provided in subsection (e), there is hereby imposed
on the taxpayer a penalty with respect to such fail-
ures in the amount determined under subsection (c).
(2) Inclusion with return
Any penalty imposed by this section with respect
to any month shall be included with a taxpayer’s re-
turn under chapter 1 for the taxable year which in-
cludes such month.
(3) Payment of penalty
If an individual with respect to whom a penalty is
imposed by this section for any month—
(A) is a dependent (as defined in section 152)
of another taxpayer for the other taxpayer’s taxa-
ble year including such month, such other tax-
payer shall be liable for such penalty, or
(B) files a joint return for the taxable year in-
cluding such month, such individual and the spouse
of such individual shall be jointly liable for such
penalty.
 3a

(c) Amount of penalty

(1) In general
The amount of the penalty imposed by this section
on any taxpayer for any taxable year with respect to
failures described in subsection (b)(1) shall be equal
to the lesser of—
(A) the sum of the monthly penalty amounts
determined under paragraph (2) for months in the
taxable year during which 1 or more such failures
occurred, or
(B) an amount equal to the national average
premium for qualified health plans which have a
bronze level of coverage, provide coverage for the
applicable family size involved, and are offered
through Exchanges for plan years beginning in
the calendar year with or within which the taxable
year ends.
(2) Monthly penalty amounts
For purposes of paragraph (1)(A), the monthly
penalty amount with respect to any taxpayer for any
month during which any failure described in subsec-
tion (b)(1) occurred is an amount equal to 1/12 of the
greater of the following amounts:
(A) Flat dollar amount
An amount equal to the lesser of—
(i) the sum of the applicable dollar amounts
for all individuals with respect to whom such
failure occurred during such month, or
 4a

(ii) 300 percent of the applicable dollar

amount (determined without regard to para-
graph (3)(C)) for the calendar year with or
within which the taxable year ends.
(B) Percentage of income
An amount equal to the following percentage of
the excess of the taxpayer’s household income for
the taxable year over the amount of gross income
specified in section 6012(a)(1) with respect to the
taxpayer for the taxable year:
(i) 1.0 percent for taxable years begin-
ning in 2014.
(ii) 2.0 percent for taxable years begin-
ning in 2015.
(iii) Zero percent for taxable years begin-
ning after 2015.
(3) Applicable dollar amount
For purposes of paragraph (1)—
(A) In general
Except as provided in subparagraphs (B) and
(C), the applicable dollar amount is $0.
(B) Phase in
The applicable dollar amount is $95 for 2014
and $325 for 2015.
(C) Special rule for individuals under age 18
If an applicable individual has not attained the
age of 18 as of the beginning of a month, the appli-
cable dollar amount with respect to such individ-
ual for the month shall be equal to one-half of the
 5a

applicable dollar amount for the calendar year in

which the month occurs.
(4) Terms relating to income and families
For purposes of this section—
(A) Family size
The family size involved with respect to any
taxpayer shall be equal to the number of individu-
als for whom the taxpayer is allowed a deduction
under section 151 (relating to allowance of deduc-
tion for personal exemptions) for the taxable year.
(B) Household income
The term “household income” means, with re-
spect to any taxpayer for any taxable year, an
amount equal to the sum of—
(i) the modified adjusted gross income of
the taxpayer, plus
(ii) the aggregate modified adjusted gross
incomes of all other individuals who—
(I) were taken into account in deter-
mining the taxpayer’s family size under par-
agraph (1), and
(II) were required to file a return of tax
imposed by section 1 for the taxable year.
(C) Modified adjusted gross income
The term “modified adjusted gross income”
means adjusted gross income increased by—
(i) any amount excluded from gross in-
come under section 911, and
 6a

(ii) any amount of interest received or ac-

crued by the taxpayer during the taxable year
which is exempt from tax.
(d) Applicable individual
For purposes of this section—
(1) In general
The term “applicable individual” means, with re-
spect to any month, an individual other than an indi-
vidual described in paragraph (2), (3), or (4).
(2) Religious exemptions
(A) Religious conscience exemptions
(i) In general
Such term shall not include any individual
for any month if such individual has in effect an
exemption under section 1311(d)(4)(H) of the
Patient Protection and Affordable Care Act
which certifies that—
(I) such individual is a member of a
recognized religious sect or division thereof
which is described in section 1402(g)(1), and
is adherent of established tenets or teach-
ings of such sect or division as described in
such section; or
(II) such individual is a member of a re-
ligious sect or division thereof which is not de-
scribed in section 1402(g)(1), who relies solely
on a religious method of healing, and for
whom the acceptance of medical health ser-
vices would be inconsistent with the reli-
gious beliefs of the individual.
 7a

(ii) Special rules

(I) Medical health services defined
For purposes of this subparagraph, the
term “medical health services” does not in-
clude routine dental, vision and hearing ser-
vices, midwifery services, vaccinations, nec-
essary medical services provided to children,
services required by law or by a third party,
and such other services as the Secretary of
Health and Human Services may provide in
implementing section 1311(d)(4)(H) of the
Patient Protection and Affordable Care Act.
(II) Attestation required
Clause (i)(II) shall apply to an individual
for months in a taxable year only if the in-
formation provided by the individual under
section 1411(b)(5)(A) of such Act includes an
attestation that the individual has not re-
ceived medical health services during the
preceding taxable year.
(B) Health care sharing ministry
(i) In general
Such term shall not include any individual
for any month if such individual is a member of
a health care sharing ministry for the month.
(ii) Health care sharing ministry
The term “health care sharing ministry”
means an organization—
 8a

(I) which is described in section 501(c)(3)

and is exempt from taxation under section
501(a),
(II) members of which share a common
set of ethical or religious beliefs and share
medical expenses among members in ac-
cordance with those beliefs and without re-
gard to the State in which a member resides
or is employed,
(III) members of which retain member-
ship even after they develop a medical con-
dition,
(IV) which (or a predecessor of which)
has been in existence at all times since De-
cember 31, 1999, and medical expenses of its
members have been shared continuously
and without interruption since at least De-
cember 31, 1999, and
(V) which conducts an annual audit
which is performed by an independent certi-
fied public accounting firm in accordance
with generally accepted accounting princi-
ples and which is made available to the pub-
lic upon request.
(3) Individuals not lawfully present
Such term shall not include an individual for any
month if for the month the individual is not a citizen
or national of the United States or an alien lawfully
present in the United States.
 9a

(4) Incarcerated individuals

Such term shall not include an individual for any
month if for the month the individual is incarcerated,
other than incarceration pending the disposition of
charges.
(e) Exemptions
No penalty shall be imposed under subsection (a)
with respect to—
(1) Individuals who cannot afford coverage
(A) In general
Any applicable individual for any month if the
applicable individual’s required contribution (de-
termined on an annual basis) for coverage for the
month exceeds 8 percent of such individual’s house-
hold income for the taxable year described in sec-
tion 1412(b)(1)(B) of the Patient Protection and
Affordable Care Act. For purposes of applying
this subparagraph, the taxpayer’s household in-
come shall be increased by any exclusion from
gross income for any portion of the required con-
tribution made through a salary reduction ar-
rangement.
(B) Required contribution
For purposes of this paragraph, the term “re-
quired contribution” means—
(i) in the case of an individual eligible to
purchase minimum essential coverage consist-
ing of coverage through an eligible-employer-
sponsored plan, the portion of the annual pre-
mium which would be paid by the individual
 10a

(without regard to whether paid through salary

reduction or otherwise) for self-only coverage,
or
(ii) in the case of an individual eligible only
to purchase minimum essential coverage de-
scribed in subsection (f)(1)(C), the annual pre-
mium for the lowest cost bronze plan available
in the individual market through the Exchange
in the State in the rating area in which the in-
dividual resides (without regard to whether the
individual purchased a qualified health plan
through the Exchange), reduced by the amount
of the credit allowable under section 36B for
the taxable year (determined as if the individ-
ual was covered by a qualified health plan of-
fered through the Exchange for the entire tax-
able year).
(C) Special rules for individuals related to
employees
For purposes of subparagraph (B)(i), if an ap-
plicable individual is eligible for minimum essen-
tial coverage through an employer by reason of a
relationship to an employee, the determination
under subparagraph (A) shall be made by refer-
ence to 1 required contribution of the employee.
(D) Indexing
In the case of plan years beginning in any cal-
endar year after 2014, subparagraph (A) shall be
applied by substituting for “8 percent” the per-

1
So in original. Probably should be followed by “the”.
 11a

centage the Secretary of Health and Human Ser-

vices determines reflects the excess of the rate of
premium growth between the preceding calendar
year and 2013 over the rate of income growth for
such period.
(2) Taxpayers with income below filing threshold
Any applicable individual for any month during a
calendar year if the individual’s household income for
the taxable year described in section 1412(b)(1)(B) of
the Patient Protection and Affordable Care Act is
less than the amount of gross income specified in sec-
tion 6012(a)(1) with respect to the taxpayer.
(3) Members of Indian tribes
Any applicable individual for any month during
which the individual is a member of an Indian tribe
(as defined in section 45A(c)(6)).
(4) Months during short coverage gaps
(A) In general
Any month the last day of which occurred dur-
ing a period in which the applicable individual was
not covered by minimum essential coverage for a
continuous period of less than 3 months.
(B) Special rules
For purposes of applying this paragraph—
(i) the length of a continuous period shall
be determined without regard to the calendar
years in which months in such period occur,
(ii) if a continuous period is greater than
the period allowed under subparagraph (A), no
 12a

exception shall be provided under this para-

graph for any month in the period, and
(iii) if there is more than 1 continuous pe-
riod described in subparagraph (A) covering
months in a calendar year, the exception pro-
vided by this paragraph shall only apply to
months in the first of such periods.
The Secretary shall prescribe rules for the collec-
tion of the penalty imposed by this section in cases
where continuous periods include months in more
than 1 taxable year.
(5) Hardships
Any applicable individual who for any month is de-
termined by the Secretary of Health and Human Ser-
vices under section 1311(d)(4)(H) to have suffered a
hardship with respect to the capability to obtain cov-
erage under a qualified health plan.
(f ) Minimum essential coverage
For purposes of this section—
(1) In general
The term “minimum essential coverage” means
any of the following:
(A) Government sponsored programs
Coverage under—
(i) the Medicare program under part A of
title XVIII of the Social Security Act,
(ii) the Medicaid program under title XIX
of the Social Security Act,
 13a

(iii) the CHIP program under title XXI of

the Social Security Act or under a qualified
CHIP look-alike program (as defined in section
2107(g) of the Social Security Act),
(iv) medical coverage under chapter 55 of
title 10, United States Code, including cover-
age under the TRICARE program; 2
(v) a health care program under chapter
17 or 18 of title 38, United States Code, as de-
termined by the Secretary of Veterans Affairs,
in coordination with the Secretary of Health
and Human Services and the Secretary,
(vi) a health plan under section 2504(e) of
title 22, United States Code (relating to Peace
Corps volunteers); 3 or
(vii) the Nonappropriated Fund Health
Benefits Program of the Department of De-
fense, established under section 349 of the Na-
tional Defense Authorization Act for Fiscal
Year 1995 (Public Law 103-337; 10 U.S.C. 1587
note).
(B) Employer-sponsored plan
Coverage under an eligible employer-sponsored
plan.
(C) Plans in the individual market
Coverage under a health plan offered in the in-
dividual market within a State.

2
So in original. The semicolon probably should be a comma.
3
So in original. The semicolon probably should be a comma.
 14a

(D) Grandfathered health plan

Coverage under a grandfathered health plan.
(E) Other coverage
Such other health benefits coverage, such as a
State health benefits risk pool, as the Secretary of
Health and Human Services, in coordination with
the Secretary, recognizes for purposes of this sub-
section.
(2) Eligible employer-sponsored plan
The term “eligible employer-sponsored plan” means,
with respect to any employee, a group health plan or
group health insurance coverage offered by an em-
ployer to the employee which is—
(A) a governmental plan (within the meaning
of section 2791(d)(8) of the Public Health Service
Act), or
(B) any other plan or coverage offered in the
small or large group market within a State.
Such term shall include a grandfathered health plan
described in paragraph (1)(D) offered in a group mar-
ket.
(3) Excepted benefits not treated as minimum essen-
tial coverage
The term “minimum essential coverage” shall not
include health insurance coverage which consists of
coverage of excepted benefits—
(A) described in paragraph (1) of subsection
(c) of section 2791 of the Public Health Service
Act; or
 15a

(B) described in paragraph (2), (3), or (4) of

such subsection if the benefits are provided under
a separate policy, certificate, or contract of insur-
ance.
(4) Individuals residing outside United States or
residents of territories
Any applicable individual shall be treated as hav-
ing minimum essential coverage for any month—
(A) if such month occurs during any period
described in subparagraph (A) or (B) of section
911(d)(1) which is applicable to the individual, or
(B) if such individual is a bona fide resident
of any possession of the United States (as deter-
mined under section 937(a)) for such month.
(5) Insurance-related terms
Any term used in this section which is also used in
title I of the Patient Protection and Affordable Care
Act shall have the same meaning as when used in
such title.
(g) Administration and procedure
(1) In general
The penalty provided by this section shall be paid
upon notice and demand by the Secretary, and except
as provided in paragraph (2), shall be assessed and
collected in the same manner as an assessable pen-
alty under subchapter B of chapter 68.
(2) Special rules
Notwithstanding any other provision of law—
 16a

(A) Waiver of criminal penalties

In the case of any failure by a taxpayer to
timely pay any penalty imposed by this section,
such taxpayer shall not be subject to any criminal
prosecution or penalty with respect to such fail-
ure.
(B) Limitations on liens and levies
The Secretary shall not—
(i) file notice of lien with respect to any
property of a taxpayer by reason of any failure
to pay the penalty imposed by this section, or
(ii) levy on any such property with respect
to such failure.

5. 42 U.S.C. 18091 provides:

Requirement to maintain minimum essential coverage;
findings
Congress makes the following findings:
(1) In general
The individual responsibility requirement pro-
vided for in this section (in this section referred to as
the “requirement”) is commercial and economic in
nature, and substantially affects interstate com-
merce, as a result of the effects described in para-
graph (2).
(2) Effects on the national economy and interstate
commerce
The effects described in this paragraph are the
following:
 17a

(A) The requirement regulates activity that

is commercial and economic in nature: economic
and financial decisions about how and when health
care is paid for, and when health insurance is pur-
chased. In the absence of the requirement, some
individuals would make an economic and financial
decision to forego health insurance coverage and
attempt to self-insure, which increases financial
risks to households and medical providers.
(B) Health insurance and health care ser-
vices are a significant part of the national econ-
omy. National health spending is projected to in-
crease from $2,500,000,000,000, or 17.6 percent of
the economy, in 2009 to $4,700,000,000,000 in 2019.
Private health insurance spending is projected to
be $854,000,000,000 in 2009, and pays for medical
supplies, drugs, and equipment that are shipped
in interstate commerce. Since most health insur-
ance is sold by national or regional health insur-
ance companies, health insurance is sold in inter-
state commerce and claims payments flow through
interstate commerce.
(C) The requirement, together with the other
provisions of this Act, will add millions of new con-
sumers to the health insurance market, increasing
the supply of, and demand for, health care ser-
vices, and will increase the number and share of
Americans who are insured.
(D) The requirement achieves near-universal
coverage by building upon and strengthening
the private employer-based health insurance sys-
tem, which covers 176,000,000 Americans nation-
wide. In Massachusetts, a similar requirement
 18a

has strengthened private employer-based cover-

age: despite the economic downturn, the number
of workers offered employer-based coverage has
actually increased.
(E) The economy loses up to $207,000,000,000
a year because of the poorer health and shorter
lifespan of the uninsured. By significantly re-
ducing the number of the uninsured, the require-
ment, together with the other provisions of this
Act, will significantly reduce this economic cost.
(F) The cost of providing uncompensated
care to the uninsured was $43,000,000,000 in 2008.
To pay for this cost, health care providers pass on
the cost to private insurers, which pass on the cost
to families. This cost-shifting increases family
premiums by on average over $1,000 a year. By
significantly reducing the number of the unin-
sured, the requirement, together with the other
provisions of this Act, will lower health insurance
premiums.
(G) 62 percent of all personal bankruptcies
are caused in part by medical expenses. By sig-
nificantly increasing health insurance coverage,
the requirement, together with the other provi-
sions of this Act, will improve financial security for
families.
(H) Under the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1001 et seq.), the
Public Health Service Act (42 U.S.C. 201 et seq.),
and this Act, the Federal Government has a sig-
nificant role in regulating health insurance. The
 19a

requirement is an essential part of this larger reg-

ulation of economic activity, and the absence of the
requirement would undercut Federal regulation
of the health insurance market.
(I) Under sections 2704 and 2705 of the Pub-
lic Health Service Act [42 U.S.C. 300gg-3, 300gg-4]
(as added by section 1201 of this Act), if there were
no requirement, many individuals would wait to
purchase health insurance until they needed care.
By significantly increasing health insurance cov-
erage, the requirement, together with the other
provisions of this Act, will minimize this adverse
selection and broaden the health insurance risk
pool to include healthy individuals, which will lower
health insurance premiums. The requirement is
essential to creating effective health insurance
markets in which improved health insurance prod-
ucts that are guaranteed issue and do not exclude
coverage of pre-existing conditions can be sold.
(J) Administrative costs for private health
insurance, which were $90,000,000,000 in 2006, are
26 to 30 percent of premiums in the current indi-
vidual and small group markets. By significantly
increasing health insurance coverage and the size
of purchasing pools, which will increase economies
of scale, the requirement, together with the other
provisions of this Act, will significantly reduce ad-
ministrative costs and lower health insurance pre-
miums. The requirement is essential to creating
effective health insurance markets that do not re-
quire underwriting and eliminate its associated
administrative costs.
 20a

(3) Supreme Court ruling

In United States v. South-Eastern Underwriters
Association (322 U.S. 533 (1944)), the Supreme Court
of the United States ruled that insurance is interstate
commerce subject to Federal regulation.

6. Pub. L. No. 115-97, Tit. I, 131 Stat. 2054 provides in

pertinent part:
* * * * *
SEC. 11081. ELIMINATION OF SHARED RESPONSI-
BILITY PAYMENT FOR INDIVIDUALS
FAILING TO MAINTAIN MINIMUM
ESSENTIAL COVERAGE.
(a) IN GENERAL.—Section 5000A(c) is amended—
(1) in paragraph (2)(B)(iii), by striking “2.5 per-
cent” and inserting “Zero percent”, and
(2) in paragraph (3)—
(A) by striking “$695” in subparagraph (A)
and inserting “$0”, and
(B) by striking subparagraph (D).
(b) EFFECTIVE DATE.—The amendments made by
this section shall apply to months beginning after De-
cember 31, 2018.
* * * * *
 21a

7. 26 U.S.C. 5000A (2012) provides in pertinent part:

Requirement to maintain minimum essential coverage

* * * * *
(c) Amount of penalty
(1) In general
The amount of the penalty imposed by this section
on any taxpayer for any taxable year with respect to
failures described in subsection (b)(1) shall be equal
to the lesser of—
(A) the sum of the monthly penalty amounts
determined under paragraph (2) for months in the
taxable year during which 1 or more such failures
occurred, or
(B) an amount equal to the national average
premium for qualified health plans which have a
bronze level of coverage, provide coverage for the
applicable family size involved, and are offered
through Exchanges for plan years beginning in
the calendar year with or within which the taxable
year ends.
(2) Monthly penalty amounts
For purposes of paragraph (1)(A), the monthly
penalty amount with respect to any taxpayer for any
month during which any failure described in subsec-
tion (b)(1) occurred is an amount equal to 1/12 of the
greater of the following amounts:
(A) Flat dollar amount
An amount equal to the lesser of—
 22a

(i) the sum of the applicable dollar amounts

for all individuals with respect to whom such
failure occurred during such month, or
(ii) 300 percent of the applicable dollar
amount (determined without regard to para-
graph (3)(C)) for the calendar year with or
within which the taxable year ends.
(B) Percentage of income
An amount equal to the following percentage of
the excess of the taxpayer’s household income for
the taxable year over the amount of gross income
specified in section 6012(a)(1) with respect to the
taxpayer for the taxable year:
(i) 1.0 percent for taxable years beginning
in 2014.
(ii) 2.0 percent for taxable years beginning
in 2015.
(iii) 2.5 percent for taxable years beginning
after 2015.
(3) Applicable dollar amount
For purposes of paragraph (1)—
(A) In general
Except as provided in subparagraphs (B) and
(C), the applicable dollar amount is $695.
(B) Phase in
The applicable dollar amount is $95 for 2014
and $325 for 2015.
 23a

(C) Special rule for individuals under age 18

If an applicable individual has not attained the
age of 18 as of the beginning of a month, the appli-
cable dollar amount with respect to such individ-
ual for the month shall be equal to one-half of the
applicable dollar amount for the calendar year in
which the month occurs.
(D) Indexing of amount
In the case of any calendar year beginning af-
ter 2016, the applicable dollar amount shall be
equal to $695, increased by an amount equal to—
(i) $695, multiplied by
(ii) the cost-of-living adjustment deter-
mined under section 1(f )(3) for the calendar
year, determined by substituting “calendar
year 2015” for “calendar year 1992” in subpar-
agraph (B) thereof.
If the amount of any increase under clause (i) is
not a multiple of $50, such increase shall be rounded
to the next lowest multiple of $50.
(4) Terms relating to income and families
For purposes of this section—
(A) Family size
The family size involved with respect to any
taxpayer shall be equal to the number of individu-
als for whom the taxpayer is allowed a deduction
under section 151 (relating to allowance of deduc-
tion for personal exemptions) for the taxable year.
 24a

(B) Household income

The term “household income” means, with re-
spect to any taxpayer for any taxable year, an
amount equal to the sum of—
(i) the modified adjusted gross income of
the taxpayer, plus
(ii) the aggregate modified adjusted gross
incomes of all other individuals who—
(I) were taken into account in deter-
mining the taxpayer’s family size under par-
agraph (1), and
(II) were required to file a return of tax
imposed by section 1 for the taxable year.
(C) Modified adjusted gross income
The term “modified adjusted gross income”
means adjusted gross income increased by—
(i) any amount excluded from gross in-
come under section 911, and
(ii) any amount of interest received or ac-
crued by the taxpayer during the taxable year
which is exempt from tax.

* * * * *