First Monday in October

Posted by AzBlueMeanie:

The "first Monday in October" marks the first day of the United States Supreme Court's new Term.

The first case, starting at 10 a.m., grows out of challenges by health care providers in California to the state’s several moves to cut reimbursements for providing medical care for the poor and the disabled. Argument preview: Challenging Medicaid cuts : SCOTUSblog:

The Court has consolidated three cases on that issue, for one hour of oral argument; the lead case is Douglas, et al., v. Independent Living Center, et al. (docket 09-958). 

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The only method chosen that is now at issue before the Supreme Court was a series of actions by the state legislature, in 2008 and 2009, to lower the amount of reimbursement that the state would pay to health care providers under the cooperative federal-state Medicaid program — the now very expensive program that provides funding to pay for care of the poor and for some disabled people.  The Court, however, will not be judging the legality of those cuts; the question before it is simply whether the providers and patients can sue, relying directly on the U.S. Constitution, to block those reductions. 

In lower courts, the challengers won a right to sue, and used that right to obtain federal court orders blocking the cuts on the theory that they conflicted with federal Medicaid law.   The dispute now under review by the Justices, though, has implications well beyond Medicaid lawsuits, with the outcome likely to help determine how states may be held accountable for carrying out federal programs.

In other appeals of note to watch, Privacy on Court's Docket; Health Law Cases in Wings | The CQ Researcher Blog:

Among other cases, the court will consider for the second time whether the Federal Communications Commission (FCC) can punish broadcasters for “fleeting expletives.” And in a case being closely watched by advocacy groups across the ideological spectrum, the justices will consider whether to allow private suits challenging state laws on federal preemption grounds. [see above]

More important than any of the 48 cases already granted review are the multiple challenges to the Patient Protection and Affordable Care Act that Congress passed and Obama signed in March 2010 after a fiercely partisan legislative battle. Moves by both sides on Wednesday in one of the cases appeared to make it all but certain that the justices can take up the issues in time for a ruling before the term ends next June, midway through a presidential election year.

Three federal appeals courts have issued different rulings on the key issue in the cases: the constitutionality of requiring everyone to have health insurance or pay a penalty. The Sixth Circuit in Cincinnati upheld the law. The Fourth Circuit in Richmond, Va., rejected the challenges on procedural grounds. But the Atlanta-based Eleventh Circuit ruled the individual mandate unconstitutional in separate cases filed by Florida along with 25 other states and by the National Federation of Independent Business.

Challengers have already filed their petition, Thomas More Law Center v. Obama, 11-117, asking the justices to review the Sixth Circuit decision. In separate moves on Wednesday, both sides in the Eleventh Circuit case asked the Supreme Court to review the decision in time to decide it this term. “We hope the Supreme Court takes up the case,” White House domestic policy adviser Stephanie Cutter wrote on the White House blog in late afternoon, “and we are confident we will win.” [See, Obama Administration Asks Supreme Court to Hear Health Care Lawsuit | The White House].The government’s petition is U.S. Dep’t of Health and Human Services v. Florida, 11-398.

Court watchers are anticipating two other major issues that the justices may decide to review this term. In Arizona v. United States, 11-182, the government is challenging Arizona’s immigration-related law known as SB 1070 that, among other things, makes it a state crime to fail to carry federally issued documentation. Critics call it the “show me your papers” law. The San Francisco-based Ninth Circuit upheld a lower court injunction blocking major provisions of the law. The state has appealed to the Supreme Court.

In a second case, Fisher v. University of Texas, 11-345, an unsuccessful white applicant to the University of Texas’ flagship Austin campus is challenging UT’s admissions policy of treating race as a “plus factor” for minority applicants. [Affirmative Action] A three-judge panel of the Fifth Circuit, in New Orleans, upheld the policy; the full court rejected an en banc hearing by a 9-7 vote, over a forceful dissent.

The Obama Administration's petition on the Patient Protection and Affordable Care Act is an interesting legal strategy. Joan McCarter writes at Daily Kos: Obama might have a Supreme Court majority on the health care law:

[T]he government's argument that "if the minimum coverage provision (individual mandate) is declared unconstitutional, then the community rating (no differential premiums based on health status) and guaranteed issue (i.e., cannot deny coverage based on preexisting conditions) provisions were inextricably intertwined with it, and should be stricken as well." That's a somewhat counter-intuitive argument, telling the Justices, essentially, if you think the mandate is unconstitutional then the entire law has to be struck, instead of salvaging as much of the law as possible, should the mandate be struck.

The reasoning behind this could be about one Justice: Scalia. Eva Rodriguez touches on that in a post at WaPo's PostPartisan blog.

The four more liberal justices on the court—Ruth Bader Ginsburg, Stephen Breyer and Obama appointees Sonia Sotomayor and Elena Kagan—should have no trouble reading the Constitution as bestowing broad powers on the federal government to regulate all manner of commerce. Although the court in recent years has pinched back congressional efforts to use the Commerce Clause to promulgate laws prohibiting guns near schools and those targeting violence against women, these were clearly non-commercial activities and quite different from the health-care law and its regulation of the medical insurance marketplace. Stronger and more directly applicable precedents remain, in which the court blessed the government’s regulation of wheat and marijuana production because these activities had an impact on interstate commerce.

The marijuana case (known formally as Gonzales v. Raich) may be particularly important because two of the more conservative justices—Antonin Scalia and Anthony Kennedy—joined with their more liberal colleagues to uphold the law under the government’s Commerce Clause powers.

In this, Scalia's concurrence in Raich could be the key, because of his focus on the Necessary and Proper clause.

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.[…]

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective."

That argument put forward by Scalia, that Congress "possesses every power needed to make that regulation effective," would apply to the mandate, making the community ratings and guaranteed issue provisions effective, and could be the argument that Justice will craft for the Court.

Antonin Scalia could be hoisted on his own petard with his recent Commerce Clause opinions. He would have to reject his own opinion in a series of recent cases, which seems unlikely since he thinks so highly of his own opinion. But Scalia is not a man bound by principles or precedents (res judicata). He is a conservative activist judge who believes in an outcome-based approach, despite all his phony claims of "original intent" constitutional interpretation.

On the other hand, I would think the U.S. Supreme Court would not want to make itself the issue in the 2012 campaign with striking down the Patient Protection and Affordable Care Act by overruling its own recent line of Commerce Clause decisions, which would be transparently judicial activism. After the firestorm over Citizens United v. FEC, the Court may not want additional scrutiny during an election year.

I would anticipate a decision in late June 2012, probably among the Court's last announced decisions.