WASHINGTON - The Supreme Court justices will consider whether to rule on the constitutionality of the Affordable Care Act at their conference on Thursday, Nov. 10. Five petitions stemming from three appeals court decisions will be before the Court, and the public may know as soon as Monday, Nov. 14, which, if any, the justices agree to hear.
So far, the Court has decided to hear enough cases to fill up its oral argument schedule through most of its February sitting, meaning that the health care cases, if granted, would be heard at the very end of February or, more likely, during the third or fourth weeks of March.
The parties to the case in which the Atlanta-based U.S. Court of Appeals for the 11th Circuit struck down the Affordable Care Act's individual mandate have led the charge toward Supreme Court review, with each party submitting its petition to the justices and responding to the other's arguments well ahead of the Court's more leisurely deadlines.
At the end of September, the 26 states and the private plaintiffs who took down the mandate in the 11th Circuit filed their petitions asking the Supreme Court to broaden that ruling in several respects, including striking down the entire law. Almost immediately after those petitions were filed, the Department of Justice filed its own to urge the Court to reverse the 11th Circuit by ruling that the individual mandate is a constitutional exercise of Congress' commerce clause powers.
The flurry of filings, with no party opposing review of either the individual mandate's constitutionality or the possibility of severing it from the rest of the law, ensured the petitions' speedy scheduling at the justices' conference.
The losing parties in the Cincinnati-based 6th Circuit case have also filed a petition to be considered at the Nov. 10 conference. That court's 2-1 decision made headlines when Judge Jeffrey Sutton -- a respected conservative jurist -- joined the majority, becoming the first Republican-nominated judge to uphold the constitutionality of the individual mandate.
The justices will consider as well the petition from Liberty University, which is challenging the decision by the Richmond, Va.-based 4th Circuit to throw out the Jerry Falwell-founded university's suit on more technical grounds. The lower court's majority held that the individual mandate's enforcement mechanism -- a penalty imposed on those who fail to obtain health insurance -- constituted a tax and could therefore not be challenged until people had actually been penalized. And that cannot occur until the mandate goes into effect in 2014.
The Justice Department has abandoned the tax argument relied upon by the 4th Circuit and now hopes for a decision on the individual mandate's constitutionality under the commerce clause. Still, the administration's petition in the 11th Circuit decision leaves the door open for the justices to take advantage of the technicality if they choose to duck deciding the case's politically charged merits at the height of a presidential campaign.
The Court has not yet scheduled for conference the petition from Virginia's attorney general, Ken Cuccinelli, in another 4th Circuit case. That petition, which asks the Court to strike down the individual mandate as a violation of the state's sovereignty under the 10th Amendment, is still awaiting the Obama administration's response. The 4th Circuit unanimously rejected Cuccinelli's argument in a strongly worded decision handed down the same day as its Liberty University opinion.
The Court need not agree to consider all or any of the specific questions presented by the petitioners. In the event that the petitions are neither granted nor denied at the Nov. 10 conference, they will be considered again on Nov. 22.
By custom, four justices must vote to grant a petition for the Court to hear a case. The votes are not released to the public, and the conferences are privately conducted with only the justices present.
Below, a slideshow about the history of Affordable Care Act litigation:
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