What to Expect: Supreme Court to Hear Health Care Law Challenge

Mar 20, 2012 7:00am

Next week when the U.S. Supreme Court considers the constitutionality of the president’s health care reform law and whether the government can require Americans to buy health insurance through a so-called “individual mandate” there will be six hours of arguments featuring six different lawyers over three days.

That’s a marathon by Supreme Court standards. Most cases are heard over a single day and rarely for longer than an hour.

Here’s a brief look at the schedule and the issues:

For starters, the court will allow an expedited release of the audio recording of the proceedings. This is rare, but not unprecedented, and is usually reserved for big cases.

The first time the court permitted audio recording was during Bush v. Gore in 2000. But don’t expect a live feed of the case. And handheld devices aren’t allowed in the court either, so there won’t be any Tweeting of the arguments as they’re happening. Audio and court transcripts will be turned around after arguments same day. Supporters and opponents of the law have extensive plans for reaction outside of court.

Here’s the current schedule:

Monday: Anti Injunction Act (AIA): Very technical arguments expected on a key question that could punt this whole issue down the road 3-4 years. At issue is a federal law (the AIA)  that says that courts can’t consider a challenge to  a tax until that tax is actually assessed.

If the Supreme Court rules that the AIA applies to the health care law then no challenge to the individual mandate can be heard until after 2014, when it goes into effect, unless Congress acts. One appeals court in Richmond dismissed a challenge to the mandate based on the AIA, and one very conservative judge on the DC Court of Appeals came to the same conclusion in a dissenting opinion. Neither the challengers nor the government believe the AIA should apply, so the court hired a lawyer to argue a position that neither of the other parties would argue  -  that the challenge to the individual mandate is premature and can only be brought once it goes into effect in 2014.

90-minutes of arguments begin at 10 am.

Arguing for the government: Solicitor General Donald B. Verrilli Jr.

Opposition: Gregory G. Katsas for the National Federation of Ind. Business

Court appointed amicus counsel: Robert A. Long

 

Tuesday:The Individual Mandate: The key provision of the law that requires most people to buy health insurance by 2014 or pay a penalty. The government argues Congress had the authority to pass the law under the Commerce Clause, the Necessary and Proper Clause and its taxing power. But opponents of the law — 26 states, four individuals and a small business group –say that Congress does not have the authority to force someone into the marketplace. They argue that if Congress has the power to pass the mandate, that would mean that the scope of its power is unlimited.

Two hours of arguments begin at 10:00 am

Arguing for the Government: SG Donald B. Verrilli Jr.

Opposition, Paul Clement for the states, Michael Carvin for the National Fed. Of Indep. Business

 

Wednesday: Severability: If the Court strikes down the mandate, what happens to the rest of the law? It’s more than 2,700 pages long! Opponents of the law  contend that if the mandate is struck down, the entire law should be struck down. The government says that if the mandate does get struck down, only two popular provisions of the law (including one that deals with the requirement for insurance companies to cover those with preexisting conditions) would have to fall, but the rest of the law can stand. An amicus counsel hired by the court will argue a third position: If the mandate is struck down all the other provisions of the law can stand.

90-minutes of arguments begin at 10:00 am.

Arguing for the government: Edwin S. Kneedler, Deputy Solicitor General

Opposition: Paul  D. Clement for the states

Amicus Counsel: H. Bartow Farr, III

 

Wednesday afternoon:  Medicaid expansion : The states argue that the health care law forces a “dramatic” transformation of the cooperative federal-state partnership that is Medicaid. Beginning in 2014 the states will be asked to cover all individuals under the age of 65 with incomes of up to 133% of the poverty level. The government argues that it will initially fund 100% of that expansion. The government also says that from the outset, Congress specifically reserved the right to “alter, amend or repeal” any provision of the Medicaid Act and that States remain free to opt out if they choose.

One hour of arguments begin at 1 pm (an unusual afternoon sitting of the court)

Arguing for the government: Donald B. Verrilli

Opposition: Paul D. Clement


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