Is Stephen Breyer Severable? and Other Issues Posed by the Latest ACA Oral Argument

     This essay's title springs from the interesting troubles Justice Stephen Gerald Breyer had with his telephone in the oral arguments this morning in California v. Texas (and Texas v. California), 19-840 and 19-1019, a.k.a. "That Latest Obamacare Case". So, if a Justice doesn't participate in oral arguments (or part of them), does that make him "severable" from the arguments? --But first, some more serious stuff, also about severability, or other pertinent issues:

I. A Precedent of Precatory Purchase Mandates--Including Health-Insurance Purchase

     As per the transcript of the oral argument, the exchange of Breyer with Solicitor General Jeffrey Wall,

[JUSTICE BREYER:] But you have read through the U.S. Code, or someone in your office, and have learned that there is no word "shall" in a precatory phrase?
GENERAL WALL: Justice Breyer, I cannot vouch that I've read the entire United States Code.
JUSTICE BREYER: I -- I haven't either. I tell you, I haven't either.

, Transcript at 99-100: besides the unintentional comedy of two men protesting that they haven't read the whole Code, there is the issue of the commanding word "shall" in a precatory phrase. So, Respondents might argue, the presence of "shall" in the ACA insurance-purchase Mandate may seem to be a command, with violators being lawbreakers.
     However, one can go for persuasive authority (albeit not controlling authority) to many examples of city or state purchase mandates using words like "must" or "shall", but being merely precatory and without penalty. The present author collected a number of them in his 19-840 amicus brief--including a number of Georgia gun-purchase precatory mandates--, but for now shall cite only the 2008 New Jersey mandate to buy health insurance for minors, see N.J. Stat. Ann. § 26:15-2, “Coverage provided for residents 18 years of age and younger; terms defined.” (2008; available at, e.g., https://tinyurl.com/NJPrecatoryKidsMandate),

a. Beginning one year after the date of enactment of this act, all residents of this State 18 years of age and younger shall obtain and maintain health care coverage that provides hospital and medical benefits. [etc.]

Id. So there is the magic word "shall", in a precatory health-insurance purchase mandate, and with no penalty mentioned, see id. It is not a federal law, true, but it shows that there is at least one "true mandate" (if the word "shall" is key) for health-insurance purchase without any penalty.

II. H. Bartow Farr's Amicus Brief for Complete Severability Is...Completely for Severability

     General Wall also said, in the transcript at 114-115, of the finding(s) in 42 U.S.C. § 18091(2)(I) and environs, when speaking with Justice Kavanaugh,

It says the mandate, a requirement that you get into the market, is essential to guaranteed issue and community rating.
And if, as the joint dissenters said in NFIB, once that triad is down and as the Court-appointed amicus said there, it's very hard to limit it to the triad. It takes down the other pieces of the Act.

Id. However, H. Bartow Farr III's Brief for Court-Appointed Amicus Curiae Supporting Complete Severability (Severability) in 11-393 and 11-400 (Feb. 17, 2012), available at https://tinyurl.com/FarrSeverabilityBrief, says,

Because the effects of invalidating the guaranteed issue and community rating provisions could not easily be limited to just those provisions, the potential spillover effect makes it even less likely that Congress intend for them to be deemed inseverable....
     Taken as a whole, therefore, the evidence does not establish that the Court should take the extraordinary step of striking down the guaranteed issue and community rating provisions. [etc.]

Br. at 46-47. This sounds different from what Wall says, which sounds like Bartow Farr was supporting striking down the whole Act if the "triad" (Mandate/guaranteed issue/community rating) was gone, when Farr was going largely in the opposite direction, i.e., giving reasons not to strike down guaranteed issue and community rating.
     When Farr went to the trouble to write a whole brief for complete severability, it would not be good to give a false portrayal of what he said.

III. Comedy at the Court: Can Breyer Be Severed from the Argument? Etc.

     On a lighter note (but one with interesting lessons): again, Breyer had some phone problems (just as, notoriously, there may also have been "toilet-related issues" vis-à-vis a phone appearance of his back in May, so that there's now a pattern of phone fun with the Justice):

JUSTICE BREYER: Something happened. I'm sorry. My machine didn't work.
JUSTICE ALITO: Yeah, I thought Justice Breyer was still on his time.
....
CHIEF JUSTICE ROBERTS: Thank you, counsel.
Justice -- Justice Breyer, we apologize for the audio difficulties and we'll go back to you.
JUSTICE BREYER: Oh, that -- that's all right. It's not a problem. Go ahead. I'm good.

Transcript at 42, 45. So does this mean that Breyer is severable from the oral argument? (He came in for later rounds after his phone failure during Don Verrilli's argument, so Breyer was not totally absent from the whole argument; but he was partially absent, which is unusual.) Does the oral argument fail to be valid because one "essential" Member of the Court was not all there?
     The present author comes out for severability in this instance. Everyone loves Breyer, but his presence, while "proper", was not totally "necessary" to the oral inquisition, so the argument was still valid.
     This has lessons for the merits of the case, actually. That is, 1) While the zero-penalty Mandate (and its precursor, the Mandate with penalty), may drive some people to buy health insurance, money is a fungible thing, so that other causes (e.g., Obamacare subsidies tempting people to buy health insurance) may keep the system afloat enough so that it doesn't sink. 2) Number 1, above, mirrors the absence of Breyer from the argument. So the argument missed some "essential" content, but was not damaged enough to make Breyer's absence inseverable; and an ACA missing the Mandate, or insurance purchases driven by the Mandate, is not damaged enough to make the Mandate inseverable.
     All told, a good day for severability.

     Some more comedy brings us back to the issue of "precatory mandates":

JUSTICE BREYER: Well, as you say that, it reminds me in English, have I ever said or have you ever said to someone in your family, you "shall" do it but that is an entreaty, an entreaty or a supplication, rather than threatening a punishment? Have you ever heard that or used "shall" in respect to a supplication or an entreaty?
GENERAL WALL: No, Justice Breyer. In my family, when I tell my kids that they shall do things, they're -- that's a command backed by a penalty.
JUSTICE BREYER: Well, that's a much more organized family than mine.

Transcript pp. 100-101. The amusing contrast between "conservative" and "liberal" families aside ("authoritarian" vs. "permissive"), the Solicitor General's comment actually hurts his case, as he is saying that a command has to be backed by a penalty to be serious. Thus, the zeroed-out Mandate cannot really be taken seriously, just as Petitioners are arguing.

IV. Conclusion: Some Lessons of Legal Humor in a Difficult Time for Americans and Their Health

     The law is an infamously boring field at times. "Legalese" is even a curse word of sorts. But in all the juridical mess that lawyers and laypeople have to swim through, there are moments of unexpected lightness, serendipitous, which not only entertain but also enlighten. Even with all the serious damage that could result from the overturning of the ACA, in a time of approaching a quarter-million COVID dead in America alone, the humor provided by Justice Breyer and his various straightmen, supra, reminds us to keep being human even in "the valley of the shadow of death" (Psalm 23:4). This is a gift that the present author, and others, may remember for a long time.