It was an uphill battle for Texas Solicitor General Kyle Hawkins on Tuesday as he tried to convince the U.S. Supreme Court that the Affordable Care Act should be dismantled.
During 33 minutes of oral argument in the consolidated cases of Texas v. California and California v. Texas, Hawkins insisted that the so-called individual mandate, requiring citizens to purchase health insurance, was essential to the massive law, even though the mandate had been zeroed out by Congress in 2017. Hawkins asserted the mandate was still unconstitutional and could not be severed from the rest of the law. Translation: because of the flawed individual mandate, the whole law must fall, as the Trump administration has wished for years.
But as soon as Hawkins started to make that case, Chief Justice John Roberts Jr. said firmly, “I think it’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down, when the same Congress had lowered the penalty to zero, did not even try to repeal the rest of the act. I think, frankly, that they wanted the Court to do that, but that’s not our job.”
Hawkins responded, “Well, Mr. Chief Justice, I would respectfully submit that it is this Court’s job to follow the text of the law as written.”
Roberts did not seem impressed. “I certainly agree with you about our job in interpreting the statute, but under the severability question, where we ask ourselves whether Congress would want the rest of the law to survive, if an unconstitutional provision were severed. And here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question.”
It continued that way for most of Hawkins’ time during the teleconferenced oral argument. Even conservative justices seemed skeptical of Hawkins’ argument as well as the government’s argument against the preservation of the Affordable Care Act.
Whether the gutted individual mandate is causing harm was an important issue for justices who wondered whether anyone had standing to argue against it. Justice Amy Coney Barrett asked several questions about standing.
Justice Clarence Thomas said “I think we’re shadowboxing a bit here. The individual mandate now has no enforcement mechanism. And so, it’s really hard to determine exactly what the threat is of an action against you.”
Justice Brett Kavanaugh also asked Hawkins how to “get around” the Supreme Court’s precedents that generally favor severability – meaning that they believe most statutes can remain legal, even if a part of the law is found to be unconstitutional.
Comments about the arguments came fast and furious on Twitter. Wright Close & Barger partner Raffi Melkonian, a keen Supreme Court watcher based in Houston, tweeted the arguments as they happened. “For those unfamiliar with SCOTUS arguments, Hawkins has been under siege,” was one of his tweets.
Hogan Lovells partner Sean Marotta, another Supreme Court aficionado, tweeted that “Hawkins has been on his back heel throughout the argument.” Later he added, “Hawkins keeps clinging to the ACA as originally enacted, but Justice Kavanaugh is just bludgeoning him, asking whether Congress ‘intended to keep coverage for people with preexisting conditions,’ saying that it sure seems Congress did.”
For Hawkins, the appearance Tuesday was his fourth before the Supreme Court. He has been Texas solicitor general since 2018, succeeding Scott Keller, now with Baker Botts.
Hawkins spent most of his childhood in Minnesota, and got his law degree from the University of Minnesota. “I was not born in Texas, but as the bumper sticker says, I got here as fast as I could,” he quipped in an interview with Texas Lawbook in March.
Hawkins clerked for Fifth Circuit Judge Edith Jones before clerking for Justice Samuel Alito Jr. in 2013 and 2014. He also worked at Gibson, Dunn & Crutcher. Hawkins was deputy state SG for a while before succeeding Keller.
Hawkins’ briefs tend to lean toward the Trump agenda, but in the March interview, he insisted he is an equal opportunity litigator. “We’ve sued the Trump administration a number of times in a number of different areas. If the EPA engages in rulemaking or engages in adjudication that we deem irresponsible in Texas, we sue. It doesn’t matter if it’s President Obama, President Trump or somebody else. We sue.”
The lawyers on Hawkins’ briefs in the Affordable Care Act case, the most recent of which was filed in August, are:
— Attorney General Ken Paxton.
— Jeffrey Mateer, first assistant attorney general and Ryan Bangert, deputy first assistant attorney general, both of whom signed the October letter claiming that Paxton misused his power. They have both since resigned.
— Matthew Frederick, deputy solicitor general since 2012.
— Lanora Pettit, assistant solicitor general, formerly an associate at Robbins, Russell, Englert, Orseck, Untereiner & Sauber, a firm well known by the Supreme Court.
— Judd Stone II, assistant solicitor general, formerly a law clerk to Justice Antonin Scalia, and chief counsel to Sen. Ted Cruz.