Deposition Services, Inc.

1

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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3

4

5 SUSAN SEVEN-SKY, also known as

SUSAN SEVENSKY, et al., 6

Appellants, 7

8

v.

9 ERIC H. HOLDER, JR., et al.,

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Appellees.

No. 11-5047

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Friday, September 23, 2011

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Washington, D.C.

13 The above-entitled matter came on for oral

14 argument pursuant to notice.

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BEFORE:

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CIRCUIT JUDGE KAVANAUGH AND

SENIOR CIRCUIT COURT JUDGES EDWARDS AND SILBERMAN 17

APPEARANCES: 18

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ON BEHALF OF THE APPELLANTS:

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EDWARD L. WHITE, III, ESQ.

JAMES HENDERSON, ESQ.

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COLBY MAY, ESQ.

ERIK ZIMMERMAN, ESQ.

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ON BEHALF OF THE APPELLEES: 23

BETH S. BRINKMANN, ESQ. 24

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Deposition Services, Inc.

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JEH CONTENTS

ORAL ARGUMENT OF:

Edward L. White, III, Esq. On Behalf of the Appellants

Beth S. Brinkmann, Esq. On Behalf of the Appellees

2 PAGE 3; 94

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JEH 1

3 PROCEEDINGS

2

THE CLERK: Case number 11-5047, Susan Seven-Sky,

3 also known as Susan Sevensky, et al., versus Eric H. Holder,

4 Jr., et al. Mr. White, the appellant. Ms. Brinkmann, the

5 appellee.

6

ORAL ARGUMENT OF EDWARD L. WHITE, III, ESQ.

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ON BEHALF OF THE APPELLANTS

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MR. WHITE: May it please the Court.

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JUDGE KAVANAUGH: Good morning.

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MR. WHITE: Good morning. My name is Edward White.

11 I'm here on behalf of the plaintiffs. With me at the counsel

12 table, from far to near, my co-counsel, James Henderson, Colby

13 May and Erik Zimmerman. I reserve five minutes for rebuttal

14 time. I'll be presenting the issues as this Court requested,

15 Commerce Clause, tax, Anti-Injunction Act. Unless there are

16 any questions on our Religious Freedom Restoration Act claim,

17 I will rely on our briefs for that.

18

The District Court reversibly erred here in ruling

19 that the Commerce Clause authorizes Congress to compel

20 American citizens to buy a product from a private company,

21 here, health insurance, for the rest of their lives based upon

22 their mental decision not to buy health insurance. Congress

23 has limited enumerated powers. Because of those limited

24 enumerated powers, American citizens derive some liberty

25 because we know what Congress can and cannot do.

JEH

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1

In the 222 years since the ratification of our

2 Constitution, Congress has never imposed a mandate on American

3 citizens to buy a product from a private company. Any

4 mandates that have been imposed by Congress have always been

5 between the citizen and the Government. You have to fill out

6 a census, you have to show up for jury duty, you can be

7 drafted. Never has it uses this power. And why that is

8 significant is as the Supreme Court noted in the Printz

9 decision, the fact that Congress did not use this attractive

10 power is strong evidence that Congress knows it doesn't have

11 that power.

12

Congress has always used incentives and what's

13 interesting is that during all the crises in our country's

14 history, Congress has used incentives. During World War II,

15 you were not required to buy war bonds, you were encouraged.

16 They put up posters. Do your part, buy war bonds. You were

17 not provided to buy them. You were not required to work in

18 factories. Even as recently as right about the same time as

19 the healthcare law was passed, we had a crisis in the

20 automobile industry. Congress did not require American

21 citizens to buy a car. Congress did not pass a law saying if

22 you go and you're over a certain income level, to buy a car,

23 there's no restrictions on you, they have to sell you the car,

24 they have to give you financing. What Congress did was give

25 us incentives, the Cash for Clunker program.

JEH

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1

JUDGE KAVANAUGH: What about the idea that in the

2 Supreme Court's case law, it is said that Congress can

3 regulate conduct when it's part of, an essential part of a

4 larger regulatory scheme? Here, the larger regulatory scheme

5 looked at, at least narrowly, includes the guaranteed issue in

6 community rating provisions, and the guaranteed issue is not

7 going to work without a mandate. So Congress has the power to

8 impose the guaranteed issue requirement, clearly. You agree

9 with that.

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MR. WHITE: Run that by me again.

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JUDGE KAVANAUGH: Congress has the power to impose a

12 guaranteed issue requirement on insurance companies.

13

MR. WHITE: Yes.

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JUDGE KAVANAUGH: You agree with that. And then it

15 won't work without an individual mandate attached to it. We

16 know that from the states that have tried it that way. It

17 didn't work. Massachusetts tried it with the mandate and it's

18 worked extremely well, at least in terms of the goal of

19 coverage. So why doesn't that doctrine fit this situation?

20

MR. WHITE: Okay. That doctrine is fairly recent

21 vintage. I think it was first talked about in 1995 in the

22 Lopez case. It's only been applied in the Raich case and

23 what's significant about that is in Raich, it was an as

24 applied challenge where all the parties agreed that Congress

25 had the power in the first instance for the Controlled

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