Supreme Court Takes Up Obamacare

Paul J. Larkin / November 14, 2011

The Supreme Court today granted review in related cases that raise the question whether Congress had the power to adopt the Patient Protection and Affordable Care Act – known colloquially as ObamaCare – health regulatory scheme and, if not, what components of that law must fall and can survive.

The Court granted the petitions for writs of certiorari in three separate cases – one filed by the National Federation of Independent Businesses (No. 11-393), one filed by the states No. 11-400), and one filed by the federal government (No. 11-398).  The specific questions that the Court has decided to review are listed below.  In sum, the Court will decide two questions: (1) whether Congress has the authority under the Commerce or Spending Clauses of the Constitution to adopt ObamaCare, and (2) whether the federal Tax Injunction Act bars suits by private parties or the states to challenge ObamaCare as being unconstitutional.  The Court decided not to consider the states’ argument that, as applied to state employees, ObamaCare violated the Tenth Amendment.

It is a bit unclear from its orders today, but the Court also set aside either 4 ½ or 5 ½ hours for oral argument, which is surprising even for those who thought the Court would likely double the normal time from one to two hours, which the Court does about once or twice a year.

The questions that the Court has decided to review should allow the Court to resolve the constitutionality of ObamaCare.  The time that the Court has set aside for oral argument is an unheard of amount of time these days.  The Court likely will hear oral argument in March, which would allow the Court 3-4 months to decide the case.

Ironically, the Court also may have had its own “Oops!” moment this morning.  The Court twice noted that it granted the states’ certiorari petition, each time saying that review was granted to only one question, but disagreeing as to what question that is.  One time the Court said that the grant was limited to Question 1, while the second notation said that the grant was limited to Question 3.  Questions 1 and 3 are different.  Let’s hope the Court takes its time from here on and decides the issues the way the Constitution requires.

Here are the precise questions accepted or added by the Court for consideration early next year:

• Department of Health & Human Services (HHS) v. Florida, No. 11-398:  “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”  The Court set aside two hours for oral argument on that question.  The Court also directed the parties to brief and argue this additional question:  “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act.”  The Court set aside one additional hour for that additional question.

• National Fed’n of Indep. Businesses v. HHS, No. 11-393 & Florida v. HHS, No. 11-400: From NFIB’s petition:   “Whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”  From the states’ petition: “Does the Affordable Care Act’s mandate that virtually every individual obtain health insurance exceed Congress’s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?”  The Court consolidated the two cases and set aside 90 additional minutes for argument.

• Florida v. HHS, No. 11-400:  In a separate grant, the Court also review limited to this question (Question 1):  “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole (1987), no longer apply?” The Court did not indicate whether there is a separate hour of argument for that issue or whether it will be argued with the other issues.  The order here also appears in tension with the other order addressing case No. 11-400, which limited the grant to a different question.