Historic U.S. Supreme Court arguments this week on the Affordable Care Act

Posted by AzBlueMeanie:

On Monday, the U.S. Supreme Court will hear ninety minutes of oral argument in U.S. Department of Health and Human Services v. Florida, on the question whether the Anti-Injunction Act bars the Court’s review of the challenges to the Affordable Care Act’s individual mandate.

The Anti-Injunction Act, 28 USC § 2283 – Stay of State court proceedings.

CORRECTION: The provision at issue is 26 U.S.C. § 7421, Prohibition of Suits to Restrain Assessment or Collection:

(a) Tax

Except as provided in sections 6015 (e), 6212 (a) and (c), 6213 (a), 6225 (b), 6246 (b), 6330 (e)(1), 6331 (i), 6672 (c), 6694 (c), and 7426 (a) and (b)(1), 7429 (b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

The Supreme Court has repeatedly held that the Act bars pre-enforcement challenges to tax laws.

In this appeal, the provisions of the Affordable Care Act pertaining to the individual mandate do not go into effect until 2014. Arguably, there is no plaintiff who has standing to demonstrate immediate and irreperable harm to be enjoined. Courts are prohibited from rendering advisory opinions. The issue is not ripe for adjudication. These jurisdictional issues could provide the Court an easy out to punt on the Affordable Care Act until after 2014 when the individual mandate provisions take effect and a plaintiff may have standing to present an issue ripe for adjudication and demonstrate an immediate and irreperable harm to be enjoined.

On Tuesday the Court will hear two hours of oral argument in U.S. Department of Health and Human Services v. Florida, on the constitutionality of the individual mandate provision of the Affordable Care Act. These arguments focus on the Court's precedents pertaining to Commerce Clause jurisprudence.

For a good discussion of this issue, see Robert Barnes in the Washington Post from last week, How the Roberts court could save health care – The Washington Post:

It is clear that the Supreme Court has developed a great arc of cases dating back to 1819 recognizing broad powers in the commerce clause, which gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Even Scalia has been part of this trend, although he was also in the majority in the two cases in which the court said Congress exceeded its commerce clause powers. But more relevant to the health-care law — and why he might uphold it — is his decision in a 2005 case, Gonzalez v. Raich, which concerned whether the federal government could keep Californians from growing medicinal marijuana for their own use, as state law allowed.

Scalia sided with the government, partly because of the court’s precedents regarding the commerce clause.

* * *

[Chief Justice John] Roberts was not on the court for any of its commerce clause cases. But he may have provided a clue about his views on federal power in a 2010 decision in United States v. Comstock. In that case, he joined the liberal justices in ruling that sexually dangerous prisoners can be detained after their sentences end.

The decision was seen as an important endorsement of the view that Congress has the power to legislate on issues not specifically delegated to it in the Constitution.

Roberts assigned the case to Breyer and joined his broad opinion in full, while Kennedy and Alito agreed only with the outcome and not Breyer’s broad view of federal power. Scalia and Thomas dissented.

* * *

[Solicitor General] Verrilli seems to think he has found another way to make the conservative justices comfortable: the opinion of Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, a former Scalia clerk and a conservative well-known to the justices. Sutton’s court was one of two appeals panels that have upheld the health-care law in the dozens of cases challenging it.

Sutton gently questions the wisdom of the law but concludes that it is within Congress’s powers to make such decisions.

This is exactly what the Obama administration would like the Supreme Court to find.

On Wednesday, the Court will hear ninety minutes of oral argument on the issue of severability in National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services. In the afternoon, the Court will return for one hour of argument on the Medicaid expansion issue in Florida v. Department of Health and Human Services.

For a discussion of Wednesday's arguments, see Lyle Denniston at SCOTUSblog. Argument preview: Health care, Part III — Beyond the mandate : SCOTUSblog, and Argument preview: Health care, Part IV — The Medicaid expansion : SCOTUSblog.

Bloomberg Government has posted an interactive illustration of how different Justices voted in the six cases regarded as most relevant in determining the outcome of the current challenge to the Affordable Care Act. (h/t SCOTUSblog).

Transcripts and audio recordings of each day’s oral arguments will be available in the afternoon following the arguments.

People seeking to get seats for the hearings on the Affordable Care Act have already begun to get into line in front of the Supreme Court building. Spectator line starts for ACA hearings : SCOTUSblog.

There will be broadcast coverage through a network pool.  The details are in this media advisory from the Court. Health care: Post-argument news : SCOTUSblog.