Six hours of oral argument will be conducted in four sessions, spread over three days. That’s what the Supreme Court has allocated for the cases challenging the constitutionality of the Patient Protection and Affordable Care Act (aka Obamacare).
The arguments begin Monday, as attorneys representing 26 states, the National Federation of Independent Business (NFIB), and a few of its individual members square off against U.S. Solicitor General Donald B. Verilli, Jr. and one of his deputies. Other attorneys appointed by the Supreme Court will join the fray on two issues. Here’s the schedule and the line-up for the arguments.
The Issue: Is the challenge to the Obamacare mandate ripe for a court challenge?
The 145-year-old Anti-Injunction Act (AIA) provides that courts may not hear most cases to block tax collections until the challengers first pay the tax and seek a refund. The individual mandate in Obamacare doesn’t kick in until 2014, and one court ruled that no one may challenge it until they pay the penalty for not buying insurance in 2015. The United States no longer takes that position; it thinks the AIA doesn’t apply to the mandate penalty because it is not a tax. The challengers argue there are four other reasons why the AIA doesn’t apply.
Since the administration agrees with the challengers on the AIA, the Court appointed a private attorney—Robert A. Long, Jr.—to argue the other side. Long will present the first 40 minutes of argument. He’ll be followed by Verrilli, who has 30 minutes allotted. Gregory G. Katsas, representing NFIB and the states, will have the final 20 minutes to argue that the AIA creates no obstacle to challenging the mandate.
Tuesday, March 27, 10:00 a.m. (two hrs. of argument)
The Issue: Does the Constitution give Congress the power to compel individuals to purchase particular financial instruments?
While Monday’s session will be largely technical, Tuesday’s session is the main event. Verrilli will argue that the Constitution’s Commerce and the Necessary and Proper Clauses give Congress all the authority it needs. Verilli will also argue that the mandate penalty is a “tax” for constitutional purposes. The challengers are represented by former Solicitor General Paul Clement, arguing on behalf of the 26 states, and Michael Carvin, speaking on behalf of NFIB, who will each have 30 minutes before the justices. Clement and Carvin will contend that, in imposing the mandate, Congress exceeded its authority, and that the penalty is not a constitutional tax. In addition, they will argue that if the mandate is allowed to stand, Congress would have virtually unlimited power to require citizens to buy anything or do anything.
Wednesday, March 28, 10:00 a.m. (90 mins. of argument)
The Issue: If the mandate must go, can the rest of the law survive?
The challengers maintain that, if the Court strikes down the mandate, it should invalidate the rest of the law as well. The administration will argue that a few related provisions would have to go if the mandate is found to be unconstitutional, but the rest of the law should remain in force. The Court appointed an amicus counsel, H. Bartow Farr, III, to stake out a third position: that the mandate is completely severable, so nothing else in Obamacare needs to change even if the Court gives the mandate the heave-ho. Clement will speak for the challengers and Deputy Solicitor General Edwin S. Kneedler will represent the administration.
Wednesday, March 28, 1:00 p.m. – (one hr. of argument)
The Issue: Does Obamacare’s huge expansion of Medicaid and the conditions for any federal funding of it violate basic principles of federalism?
Clement will argue that the law effectively coerces states to participate in a radically more expansive Medicaid program than what they have worked under for decades. In the early years of the expansion, slated to begin in 2014, the feds will supposedly pick up all the new costs. But the states argue the expansion will impose massive new costs almost immediately, which will only increase in future years when the federal government decreases its payments. Verrilli will argue that the federal government can alter the terms of the federal-state program any time it wants to and, if the states don’t care for the changes, they can just opt out of Medicaid.
The Supreme Court does not allow oral arguments to be broadcast live, either on TV or radio. For this case, it will release an audio tape of the arguments a few hours after they conclude. For more timely reports on the arguments, check the Foundry, where reports and pod casts will be posted soon after the sessions’ closings.