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Obama Health Care: Supreme Court May Decide In Mid-November Whether To Hear Cases

Supreme Court Health Care

First Posted: 10/26/11 04:46 PM ET Updated: 12/26/11 05:12 AM ET

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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  • Round 1: The District Courts Divide

    U.S. District Judge George Caram Steeh, a Clinton appointee sitting in the Eastern District of Michigan, released the first major Affordable Care Act decision in October 2010. In <a href="" target="_hplink"><em>Thomas More Law Center v. Obama</em></a>, Steeh sided with the government to hold the law constitutional. "The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," Steeh wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those without insurance."

  • Round 1: The District Courts Divide

    At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In <a href="" target="_hplink"><em>Liberty University v. Geithner</em></a>, Moon wrote that "by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."

  • Round 1: The District Courts Divide

    In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In <a href="" target="_hplink"><em>Virginia v. Sebelius</em></a>, Hudson struck down the individual mandate, writing that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the commerce clause." Importantly, Hudson also held that the individual mandate is severable from the rest of the Affordable Care Act, which means a court can strike it down while allowing the law's remaining provisions to stand.

  • Round 1: The District Courts Divide

    Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In <a href="" target="_hplink"><em>Florida v. Department of Health and Human Services</em></a>, not only did he strike down the individual mandate as exceeding Congress' power under the commerce clause, but he also took the whole health care law down with it. "The act," Vinson wrote, "like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."

  • Round 2: The Appeals Courts Split

    In June 2011, the U.S. Court of Appeals for the 6th Circuit <a href="" target="_hplink">upheld, by a 2-1 vote</a>, Judge Steeh's decision in <em>Thomas More Law Center</em>. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, was the first judge chosen by a Republican president to reject the commerce clause challenge, writing that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." He joined Judge Boyce Martin, a Jimmy Carter appointee, in the majority, while Judge James L. Graham, a Reagan appointee, wrote a vigorous dissent. In August, the 11th Circuit, reviewing <em>Florida v. HHS</em>, <a href="" target="_hplink">produced a near mirror-image result</a>. Judge Frank Hull, a Clinton appointee, joined the Reagan-appointed Judge Joel Dubina to affirm District Judge Vinson's decision to strike down the individual mandate. Judge Stanley Marcus, a Clinton appointee, dissented, quoting heavily from Sutton's 6th Circuit concurring opinion. All three 11th Circuit judges found the mandate severable from the rest of the Affordable Care Act, reversing District Judge Hudson's decision to deep-six the entire law. Both appeals courts unanimously rejected the government's taxing power argument, insisting that if Congress had thought the penalty for not buying insurance was a tax, it would have explicitly called it a tax. On this issue, a third appeals court created another circuit split.

  • Round 2: The Appeals Courts Split

    In September 2011, the 4th Circuit dismissed two challenges to the health care law, finding that the plaintiffs did not have standing to bring their lawsuits. The panel did find that <a href="" target="_hplink">the penalty for not buying insurance was a tax</a> -- a good sign for the government's defense of the law. But rather than hold that the individual mandate was a valid exercise of Congress' taxing power, Judges Diana Gribbon Motz, a Clinton appointee, and James Wynn, an Obama appointee, said that another federal law, the Anti-Injunction Act, prevented the plaintiffs from challenging the mandate until they actually had to pay the tax -- which cannot happen before the provision goes into effect in 2014. The third judge, Obama appointee Andre Davis, said he wouldn't have dismissed the lawsuits and would have upheld the individual mandate based primarily on commerce clause ground. Regardless of the methodology, the Obama administration was now winning 2-1 in the courts of appeals against the Affordable Care Act's challengers.

  • Final Round: The Supreme Court Takes The Case

    The Supreme Court is most likely to choose to hear a case for one of three reasons: The constitutionality of a federal law hangs in the balance, the circuit courts disagree on the same issue, or the solicitor general advises the Court to take the case. Cases that fulfill just one of these considerations stand a good chance of reaching the justices. The health care cases had all three. In November 2011, the justices <a href="" target="_hplink">agreed to review</a> the 11th Circuit's decision. To signal how seriously it took the challenges, the Court soon thereafter scheduled six hours of oral argument to take place from March 26 to 28, 2012. Normally, even for blockbuster cases, the justices only allot one hour for oral argument.

  • Final Round: The Supreme Court Hears Oral Argument

    All eyes turned to the Supreme Court in late March 2012 when the justices heard oral argument and gave their first public hints of where they stood on the Affordable Care Act's constitutionality. On the first day, March 26, liberal and conservative justices alike <a href="" target="_hplink">showed little interest</a> in following the 4th Circuit's decision to throw out the challenge to the health care law on a technicality before ever reaching the constitutional merits of the individual mandate. That display of unity disappeared on Tuesday, March 27, as the Court took on the <a href="" target="_hplink">main event</a>: two hours of argument over the mandate. The Court's four Democratic appointees all appeared to find the mandate well within Congress' powers to regulate interstate commerce, as the 6th Circuit had held; the Court's five Republican appointees, in concert with the 11th Circuit, seemed to think otherwise. Only in the final moments did swing vote Justice Anthony Kennedy soften his tone by musing aloud whether the health insurance market is different enough, after all, to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said. On Wednesday, March 28, the justices <a href="" target="_hplink">considered</a> what other parts of the Affordable Care Act would fall if they found the mandate unconstitutional. No majority emerged. Several justices agreed with the challengers that the whole law must fall. Several others agreed with the Obama administration that two key (and popular) provisions could not survive without the mandate. Still others indicated some sympathy for severing the mandate alone and allowing the rest of the law to stand. A decision is expected by the end of June.

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