Supreme Court to hear Affordable Care Act appeals – Oral Argument in March

Posted by AzBlueMeanie:

The Obama administration and the litigants asked the U.S. Supreme Court to take jurisdiction of the divided Court of Appeals decisions on the Affordable Care Act, and today the Court granted certiorari. Court sets 5 1/2-hour hearing on health care (FINAL) : SCOTUSblog:

[T]he Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.

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The Court has informed the lawyers involved that the case will be argued over two days.

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The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.

Accepting the constitutional dispute on its very first examination of the cases brought to it speedily by lawyers, the Court wrote three separate orders outlining how it would deal with the cases. That meant that they would not be grouped together, but that they likely will be heard close together, if not back-to-back on a single day.

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.

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the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.

Here, in summary, is what the Court’s orders on Monday did:

* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Department of Health & Human Services [11-400]), cases consolidated for 90 minutes of oral argument.

* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Department of Health & Human Services v. Florida, et al.), two hours of oral argument.

* Parties directed to brief and argue whether the lawsuit brought by the states challenging the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398), one hour of oral argument. (That order appeared to be limited to reviewing whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.)  (UPDATE: It appears, on a closer reading of the grants, that the Anti-Injunction Act will be explored as a limitation on challenges to the mandate by either private individuals or states.)

* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., v. Department of Health and Human Services case, 11-400); one hour of oral argument.

Here is Lyle Denniston's analysis of today's orders. The Court’s agenda on health care : SCOTUSblog:

The Supreme Court, using its very wide option to frame its own agenda, on Monday reopened one of American history’s most fevered constitutional debates, going back to the very architecture of the Constitution and the Founding era: how to divide up power between national and state governments.   The health care cases the Court promised to review involve nothing less than a choice between an ever-expanding social safety net, spreading out in federal law, and a multitude of more localized decisions by state government and the private economy. It is, perhaps, no coincidence that this choice also appears likely to be the overriding issue in the presidential and congressional election campaign that starts formally two months from now, but is already underway in some preliminaries.

The Nation, in the coming months, thus will be exposed to two arenas of constitutional combat: the quiet, disciplined and even scholarly written and oral debate within the highest court, and the noisy, quite unruly and frequently emotional jousting within the political community. There very well may be an intersection of the two — late next June, when the Court is expected to announce its judgment about the Affordable Care Act’s constitutionality.

That the Court had large constitutional issues foremost in mind was reflected in the fact that it picked carefully among the issues presented to it in five separate appeals, then selected only those that bore most directly upon governmental power — including its own authority to finally resolve this dispute between the national and state governments.

What Congress intended in this new law was a fundamental alteration of the way America pays for health care, and a marked expansion of eligibility for insurance so that one does not have to pay medical bills out of pocket, or have them covered by someone else’s charity. The core issue the Justices will decide is whether Congress had authority to do that, under three clauses in the Constitution’s Article I: the Commerce Clause, the General Welfare Clause, and the Spending Power Clause.

Congress’s power under the first two of those Clauses, perhaps supplemented by the Necessary and Proper Clause, are raised in the questions the Court agreed to decide about the health care law’s most crucial provision: a mandate that virtually every American must obtain health insurance by the year 2014, or pay a financial penalty along with their federal tax return. This so-called “minimum coverage” provision, broadly attacked in nearly 30 lawsuits as an extravagant federal intrusion into private choice, is the financial foundation of much if not all of the new law’s pragmatic workability.

If the insurance mandate and its attached penalty are nullified by the Court, the Justices would then be faced with the next most important question they granted: is the mandate so vital to the rest of the law, that none of it — or some parts of it, at least — cannot survive constitutionally? That will require the Justices to examine the very difficult question of whether Congress would have wanted some of the law, if it couldn’t have the mandate.

But whether the Court actually will decide the constitutionality of the mandate, and the allied question of what happens if the mandate is nullified, depends upon whether the courts — including the Supreme Court — have the authority to decide those issues. That will turn on the answer the Court provides to another vital question it accepted for review: were the states that challenged the mandate barred from filing their court challenge by the federal Anti-Injunction Act? There are two such laws that curb the federal courts’ power to issue injunctions; the one at issue here, dating back to 1867, is sometimes called the Tax Anti-Injunction Act. The Act declares that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” and was intended to keep the government’s revenues flowing even while a taxpayer objects to paying a certain levy. The Act thus has the effect of barring any lawsuit against a federal tax before it actually is enforced; the taxpayer must pay the tax first, then pursue a challenge.

If the Court were to find that the Act shuts the courthouse door to the constitutional challenges to the mandate and the attached penalty, that would mean that challenges would have to wait until after the mandate actually had gone into effect in 2014, and was actually enforced against a taxpayer.

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 There is no dispute that the Act does apply to private lawsuits against federal taxes; there is, though, a dispute between the states and the federal government over whether the Act applies to states that sue. The 26 states who sued say it does not, the Justice Department said it does. There are private parties involved in the petition the Court granted from a business trade group (National Federation for Independent Business, et al., v. Sebelius, 11-393), and those parties were all before the Eleventh Circuit Court, leading to the decision the government is challenged in its own petition (Health & Human Services Department v. Florida, et al., 11-398).

Also potentially lurking in the Court’s review is the question of whether it or any court had jurisdiction to hear the states’ challenge to the mandate, because it could be argued that the states lacked “standing” to contest the insurance mandate. . .  The Court may never each the issue, though, since undoubtedly some of those involved in the business trade group case do have a right to sue against the mandate.

The 26 states’ petition raised three issues, and the Court granted two of them: one dealing with whether other parts, or all, of the entire health care law goes under if the mandate is struck down, and one dealing with the constitutionality of the new law’s broad expansion of the Medicaid law, a federal-state program that provides medical care to the poor and the disabled.

In addressing that second question, the Court will be examining the scope of Congress’s power to attach conditions when it provides federal money to the states to pay for a program like Medicaid — in other words, Congress’s authority under the Spending Clause.

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For years — indeed, since the Dole decision 24 years ago — state governments have repeatedly asked the Supreme Court to provide added constitutional protection for them from the coercive power of Congress, when it attached conditions as strings to grants of federal money. The Court usually has turned aside those claims, making it seem that it has not been ready to address so fundamental a question, because the question does go to the basic allocation of governmental authority between national and state levels.   But it hardly can answer the question the 26 states asked without reaching that underlying division of power.

There is no question, of course, that the states had “standing” to challenge the expansion of the Medicaid program.

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The states, in their appeal, also tried to raise another question about state sovereignty: the validity of the new law’s mandate that large employers provide adequate health insurance coverage to their full-time employees. The Court did not grant review of that issue, however.

The Court also did not grant review of a parallel provision in the new law, requiring large employers in the private sector to assure adequate health coverage for their full-time workers.

The Court apparently refused to hear the issues about employer obligations under the new law because those issues did not actually implicate the division of governmental power, the focus of the issues granted.

The decision of the Court is likely to be announced during the last week of June at the end of the Court's session. However the court decides is likely to touch off a political firestorm and make the U.S. Supreme Court a major issue in the fall presidential campaign.

Justice Clarence Thomas ethically should recuse himself from hearing and deciding these cases due to his wife Ginny's overt political action committee activities in opposition to the Affordable Care Act. Justice Thomas cannot in good conscience argue that there is no appearance of impropriety when his wife has been so out front and so outspoken in opposition to a matter that is now pending before the U.S. Supreme Court, on which her husband serves. Public pressure and media pressure should be brought to bear on Justice Thomas to recuse himself from these cases.