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` IN THE SUPREME COURT OF THE UNITED STATES
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` COVENTRY HEALTH CARE OF
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` MISSOURI, INC., FKA GROUP
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` HEALTH PLAN, INC.,
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` Petitioner : No. 16-149
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` Washington, D.C.
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` Wednesday, March 1, 2017
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` The above-entitled matter came on for oral
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` argument before the Supreme Court of the United States
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`APPEARANCES:
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` MIGUEL A. ESTRADA, ESQ., Washington, D.C.; on behalf
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` MATTHEW W.H. WESSLER, ESQ., Washington, D.C.; on behalf
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`Alderson Reporting Company
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` MIGUEL A. ESTRADA, ESQ.
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` P R O C E E D I N G S
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` CHIEF JUSTICE ROBERTS: We'll hear argument
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` this morning in Case 16-149, Coventry Health Care
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` Missouri v. Nevils.
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` Mr. Estrada.
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` MR. ESTRADA: Thank you, Mr. Chief Justice,
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` and may it please the Court:
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` The issue in this case is whether FEHBA
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` Number one, antisubrogation laws relate to
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` Section 8902(m)(1) under the Supremacy Clause.
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` If I could turn to my first point, it seems
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` JUSTICE GINSBURG: Is there any -- any room
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` contracts with OPM?
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` MR. ESTRADA: Well, to be sure, the -- the
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` JUSTICE KAGAN: Before you do, I mean, we
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` MR. ESTRADA: I actually was going to be the
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`jurisdiction.
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` JUSTICE KENNEDY: Counsel, in this case you
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` are there some limiting principles that we -- should
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` direct -- to address a parade of horribles that isn't in
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` this case, but are there some general limiting
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` whether or not preemption, A, existed; B, is permitted?
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` MR. ESTRADA: Well, of course. You know,
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` this Court's doctrine. You have conflict where you take
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` the text of the statute and decide whether the State
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` I think that's the common form that comes in front of
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` the Court, and I think that's just a question of
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` ordinary statutory interpretation applying all the
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` relevant canons and considering as well the -- the
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` purpose of Congress.
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` The harder cases are ones like Hillman v.
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` the statute, but you're considering whether the State
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` But the issue in this case seems to me to be
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` what you have here, where Congress had exercised an
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` appropriate level of Federal power under Section --
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` under Article 1 Section 8, and then has gone further by
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` CHIEF JUSTICE ROBERTS: Well, maybe one
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` doctrine has to do with the delegation issue.
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` Suppose Congress passed a law that said,
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` well, any professional responsibility -- any
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` professional responsibility rule adopted by the ABA will
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` Is that okay under preemption doctrine?
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` MR. ESTRADA: Well, it seems to me likely
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` not, but let me take apart what I think are the key
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` constitutional authority to do what you just described.
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` Second, to my --
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` CHIEF JUSTICE ROBERTS: Are you just -- are
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` MR. ESTRADA: Well --
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` CHIEF JUSTICE ROBERTS: -- profession is
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` MR. ESTRADA: -- as described, is not
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` CHIEF JUSTICE ROBERTS: Right. Well, assume
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` MR. ESTRADA: When -- then there's a
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` trying to do. It is, in fact, true that Congress has
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` adopted what otherwise would be State -- State rules for
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` the government of certain issues. You know, you have
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` statute, for example. And, you know, the question is
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` CHIEF JUSTICE ROBERTS: I guess, is it --
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` you know, in some of those areas, you're talking about
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` to delegate the authority to decide what laws are
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` MR. ESTRADA: I think it depends on how it
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` does it. I would be reluctant to say that considering
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` whatever crisis or problem Congress may be considering,
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` that there's a particular avenue of dealing with them
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` ability to do that would be to do something like has
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` Federal court.
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` Now, those rules in some cases are
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` considered preemptive, and so I don't want to foreclose,
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` you know, the proposition that as a category using an
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` subject to appropriate government supervision, could not
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` be a possible tool that Congress could use.
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` CHIEF JUSTICE ROBERTS: Well --
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` MR. ESTRADA: But in that event -- if I
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` could just finish -- but in that event, you would also
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` with the limit that this Court itself has placed on the
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` -- on the delegation by Congress -- Congress of any
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` CHIEF JUSTICE ROBERTS: But what about two
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` private parties, whether, you know -- whatever they are,
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` a railroad and a shipper, in other words, and Congress
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` says, whatever you agree to will preempt contrary State
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` MR. ESTRADA: I believe --
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`CHIEF JUSTICE ROBERTS: I know you're going
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` to suggest --
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` MR. ESTRADA: No.
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` CHIEF JUSTICE ROBERTS: -- it's not this
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` MR. ESTRADA: No, no. I understand --
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` CHIEF JUSTICE ROBERTS: -- but assume it is.
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` MR. ESTRADA: I understand that, Mr. Chief
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` case --
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` Justice. I find it hard to believe that Congress could
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` lawfully give a blank check to private individuals
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` without any subject -- without any government
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` supervision and/or without appropriate standards as to
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` what it is that they may do or not do. But I want to
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` distinguish the hypothetical that you posit from what's
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` at issue in this case.
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` CHIEF JUSTICE ROBERTS: Well, before you
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` get -- get to that, I mean, it would seem to me that you
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` could deal with the concerns you have and still address
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` the problem. In other words, it's not a blank check.
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` You know, it -- any rate between, you know, $10 per mile
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` and $30 per mile, but you, the parties, you know, we
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` want to give the -- the free enterprise system a little
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` more scope than having the government set it. So
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` mile will preempt contrary State regulation.
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` MR. ESTRADA: Again, it seems to me that
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`this is a question to some extent of conceptualizing. I
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`think I am agreeing with the basic premise of your
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`question, Mr. Chief Justice, but there are, of course,
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`limits to the ability of Congress to delegate to private
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`individuals.
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`JUSTICE BREYER: The question, I think,
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`interesting, if we go back to the sick chicken,
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`Schechter --
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`MR. ESTRADA: Well, I was going to go there.
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`JUSTICE BREYER: -- there first is a
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`question --
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`MR. ESTRADA: Uh-huh.
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`JUSTICE BREYER: -- of whether Congress has
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`this Article 8 power to legislate at all in the area.
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`MR. ESTRADA: Uh-huh.
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`JUSTICE BREYER: You assume the answer's
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`yes.
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`The second is a nondelegation question.
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`There, the delegation had run riot. But suppose they'd
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`Given the satisfaction of the -- of the
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`source of power and satisfaction of the delegation
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` doctrine or nondelegation, is there additional
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` requirement? Does the preemption matter, assuming there
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` were parts of that that preempted as there must have
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` been, is that a separate doctrine that imposes yet a
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` further restriction, or once the first two are
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` satisfied, have you automatically satisfied the third?
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` MR. ESTRADA: I find it hard to say that
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` there's an independent limit on the basis of preemption,
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` because, as I understand the power of Congress, Congress
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` could pass a statute that displaces all law in a subject
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` matter and renders it a law-free area, for example. And
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` so I don't know that I would ever say that in dealing
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` with a crisis like the Great Depression, for example,
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` Congress could not turn to the type of remedies that it
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` tried in the Schechter case and that those would be
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` completely foreclosed to Congress. But --
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` CHIEF JUSTICE ROBERTS: Yeah. But the
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` idea -- the concern is -- raised by your friend on the
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` MR. ESTRADA: Uh-huh.
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` CHIEF JUSTICE ROBERTS: But we're talking
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` the political constraints that Congress is subject to to
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` undertake that pretty significant step of telling State
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` law -- State legislators that they can't legislate.
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` MR. ESTRADA: But if I could just pivot to
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` what -- why the -- the argument doesn't really fit what
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` the problem is that we have in this case, even though it
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` is preemption, is that it arises ostensibly because the
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` statute literally says that the terms of its statute
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` would supersede and preempt. It is quite evident from
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` the statute that what Congress actually intended to say
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` and the words will bear is that the terms of the statute
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` cetera, et cetera.
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` And that although I understand that the
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` whole delegation going down, you know, the -- the road
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` of delegation is very interesting, I will point out that
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` nowhere has a delegation challenge as such been raised
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` in this case in any of the lower courts, and that it was
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` only in this Court that this was reconceptualized as
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`I think the proper way to conceptualize what
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`Congress has done in this statute, as it has in many
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`other statutes, is that it has displaced State law to
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`create room for the operation unimpeded of certain
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`contract terms that it believed should be encouraged for
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`the public interest. The Federal Arbitration Act is one
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`example of that, even though it is a purely private
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` statute. You know, the -- the statute that we're
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` mentioning earlier, ERISA, is another.
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` I will simply say that if Congress can do
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` that to make room for the operation of purely private
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` contracts, a context that involves Federal benefits for
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` the Federal workforce under Federal contracts
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` administered by a Federal agency is something that
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` Congress can clearly deal with, because under Clearfield
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` Trust and its progeny, these contracts would be governed
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` by Federal common law in any event, and that law would
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` be preemptive, at least in certain circumstances.
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` So it is certainly appropriate for Congress
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` to identify itself the outlines and limits of the
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` preemption than to leave it to ad hoc adjudication of
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` common law claims by the Federal courts in this country.
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` Thank you, Mr. Chief Justice. And I would
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` like to reserve the remainder of my time for rebuttal.
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` CHIEF JUSTICE ROBERTS: Thank you, counsel.
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` Mr. Tripp.
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` ORAL ARGUMENT OF ZACHARY D. TRIPP
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` FOR UNITED STATES, AS AMICUS CURIAE,
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` SUPPORTING THE PETITIONER
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` MR. TRIPP: Mr. Chief Justice, and may it
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` please the Court:
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` OPM's regulations answer the question
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`18
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` presented here, and I'd like to just make three points
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` about how they work, why they're important --
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` JUSTICE SOTOMAYOR: Do you think the
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` MR. TRIPP: -- and --
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` JUSTICE SOTOMAYOR: Do you think this is
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` statute --
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`ambiguous?
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` M