JONATHAN COHN NOVEMBER 14, 2011
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It's official: The Supreme Court is going to hear the case against the Affordable Care Act. And it's going to hear the case this term.
The Court just announced that it would consider two of the lawsuits challenging the law, one each from the states (led by Florida) and the National Federal of Independent Businesses.
Translating and interpreting legal language is not my specialty, but SCOTUSblog -- the best source around for this kind of analysis -- tells me that the Court basically agreed to hear all of the major questions surrounding the law's constitutionality, including whether the anti-injunction act bars the court from ruling on the case.
The Supreme Court also granted extensive time for oral arguments, as a weighty case like this surely deserves. The justices have set aside five-and-a-half hours, divided into four separate sessions to discuss four separate issues: Whether Congress can impose an individual mandate, whether it can demand that states comply with Medicaid provisions, whether it's possible to leave parts of the law intact if the Court rules others are invalid, and whether the Anti-Injunction Act gives the Court the power to rule on the case.
According to Lyle Denniston of SCOTUSblog, the time allotment is a record for the modern era. The court could decide to divide the arguments over two days. The first question -- whether the requirement that everybody of means pay for health care, by getting insurance or paying a fee -- will get two hours, more time than any other issue.
Technically speaking, last week's Circuit Court decision upholding the law didn't factor into this decision. The justices met to discuss the cases on Thursday and that case was not among those they officially considered. But the decision came from Judge Laurence Silberman, a well-known conservative, and was sweeping in its rejection of the lawsuit. So I imagine the justices were at least aware of it. (For more on that case and its significance, I'd highly recommend an article by attorney Bruce Brown that ran at TNR over the weekend.)
I'll have more analysis later, once qualified legal minds have had a chance to analyze the order and what it means. For now, all you need to know is that Obamacare is going to get its day in court -- and it's going to happen smack in the middle of the presidential campaign.
What, you thought this saga was going to end any other way?
6 comments
There are probably a large number of parties and counsel that have participated in these lawsuits before both the district courts and the courts of appeal. If the weather is nice on the day of oral argument, maybe all those folks there for oral argument can agree to meet outside.
- Doug12
November 14, 2011 at 2:55pm
"What, you thought this saga was going to end any other way?"
Nope. It sounds like just the think for a conservative leaning, activist court to decide. I can see it now, the crowning achievement of the Obama administration rendered null and void before he even steps down from office. Sad.
- GSpinks
November 14, 2011 at 4:03pm
GSpinks: "I can see it now, the crowning achievement of the Obama administration rendered null and void before he even steps down from office." Nope. If the Court gets past the Anti-Injunction Act, Scalia votes to uphold the mandate. Kennedy too. You heard it here (though I'm hardly the first).
- dsimon
November 14, 2011 at 5:30pm
I read the article about Scalia's opinions. It noted that he votes however he wants to, and damn the reasoning. He'll vote against, unless he already knows he's going to lose (in which case he might switch to keep credibility, but I wouldn't count on it).
- Curran1
November 14, 2011 at 9:59pm
Kennedy is the one who matters. Sotomayor and Kagan will certainly vote to uphold. Ginsburg and Breyer probably will too. Add Kennedy and you've got a majority. Scalia might join that majority for his own amusement, but it doesn't much matter if the vote is 5-4 or 6-3; it's a win either way. On the other hand, if Kennedy turns to the dark side, Scalia isn't likely to push him away.
- Dausuul
November 15, 2011 at 12:46am
For the argument that Scalia will uphold the mandate if he follows his own prior opinion, see http://beeryblog.wordpress.com/2011/07/02/national-health-care-litigation-will-test-scalias-intellectual-honesty/. Where people seem to disagree is on the "if."
- dsimon
November 15, 2011 at 4:07pm