WASHINGTON -- In an order released on Monday morning, the Supreme Court announced that it will hear more than five hours of oral argument in the challenges to the Affordable Care Act brought by 26 states and several private parties.
The order indicates the gravity with which the justices view the health care cases, as the Court rarely allots more than an hour to for argument in each case it hears.
Within those five-plus hours, the justices divided the time into four separate arguments to address the various questions raised in petitions from the Department of Justice, the 26 states and the National Federation of Independent Business.
The longest argument, set for two hours, will consider whether Congress had the power under Article 1 of the Constitution to enact the Patient Protection and Affordable Care Act. Article 1 outlines the types of laws Congress may pass, such as those that regulate interstate commerce. The Justice Department has argued in the lower courts and in its petition to the Supreme Court that the health care law's "individual mandate," which requires virtually all Americans to purchase health insurance or pay a penalty on their tax returns, falls within Congress' power under the commerce clause of Article 1.
The cases granted Monday come up from the U.S. Court of Appeals for the 11th Circuit, which struck down the individual mandate by a 2-1 vote, holding that the provision exceeds the scope of the commerce clause.
Majorities on the 6th Circuit and the D.C. Circuit have disagreed, siding with the Obama administration that the law falls within the clause's broad boundaries as articulated by the Supreme Court over the past seven decades.
The justices will also hear 90 minutes of oral argument on whether the entire health care law must fall should they find that the individual mandate is unconstitutional. The 11th Circuit found the mandate could be severed from the rest of the law and therefore refused to throw out the whole law. That ruling reversed Judge Roger Vinson's decision at the district court level that the mandate was not severable. The National Federation of Independent Business urged the Court to reinstate Vinson's decision, which remains the only one in the country to strike down the health care law in its entirety.
The justices will hear an hour of oral argument on whether they should avoid ruling on the merits at all because the individual mandate does not go into effect until 2014. Specifically, the justices will be asked to determine if the penalty that must be paid under the mandate constitutes a tax, which would trigger a federal statute called the Anti-Injunction Act. That law requires individuals to have actually paid the taxes required by a law before they can challenge the law's constitutional merits in court. A 2-1 majority on the 4th Circuit, composed of Democrat-appointed judges, tossed a suit against the health care law on these grounds several months ago.
The Justice Department urged the Court to rule on the merits and downplayed the 4th Circuit's decision in its brief. But last week, Judge Brett Kavanaugh, a prominent and influential conservative judge, dissented for that very reason from the D.C. Circuit's decision to uphold the mandate. Kavanaugh wrote that the penalty constituted a tax, which would bar the courts from considering the law's constitutionality until after the first penalties have been paid in 2015. That the justices asked for a full hour of argument on this issue after all parties petitioning the Court urged a ruling on the merits may signal that the Court is open to avoiding a politically charged constitutional decision during the heart of the 2012 campaign season.
The Court will hear one final hour on the constitutionality of Congress' pinning federal funding to the states on their participation in the law's health care reforms. No court has yet accepted the argument, put forward by the 26 states in this suit, that the health care law coerces and commandeers the states to act in violation of basic federalism principles.
Oral arguments will likely be scheduled for the third or fourth week of March, with a decision coming down at the end of June before the Court recesses for the summer.
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 Thomas More Law Center v. Obama, 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."
At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In Liberty University v. Geithner, 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."
In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In Virginia v. Sebelius, 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.
Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In Florida v. Department of Health and Human Services, 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."
In June 2011, the U.S. Court of Appeals for the 6th Circuit upheld, by a 2-1 vote, Judge Steeh's decision in Thomas More Law Center. 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 Florida v. HHS, produced a near mirror-image result. 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.
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 the penalty for not buying insurance was a tax -- 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.
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 agreed to review 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.
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 showed little interest 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 main event: 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 considered 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.