Posted 12/19/11 on Health Care Reform Update
On March 26, the Court has allotted an hour to hear arguments on whether the Anti-Injunction Act makes challenges to the individual mandate premature until 2015. With neither the government nor the ACA’s opponents pressing the point, the argument for the precedence of the Anti-Injunction Act—an argument that four appellate judges had earlier found convincing—will be presented by Washington attorney Robert Long as a “friend of the court”.
On March 27, two hours have been allocated to the most publicized issue, whether Congress exceeded its constitutional authority in requiring individuals to buy insurance or pay a penalty.
On March 28, the Court has allotted time to two issues. First, it will consider for up to 90 minutes whether the individual mandate provision may be severed from the rest of the statute, an issue that would become critical if the mandate is ruled unconstitutional. The 11th Circuit Court of Appeals ruled in favor of severability when it struck down the mandate earlier this year, but the Obama administration argues that the provision is so intertwined with two other parts of the law—one forbidding insurers to turn away applicants, and the other barring them from taking account of pre-existing conditions—that if the mandate falls, those provisions must fall with it. As with the Anti-Injunction Act issue, the court will hear arguments from a “friend of the court,” since again both parties oppose the severability argument.
Also on March 28, the Court has allocated an hour for arguments on whether Congress was entitled to expand the scope of Medicaid, an issue that initially was not expected to be addressed by the Court, since none of the appeals courts ruled against its constitutionality.
As with other Supreme Court hearings, the justices’ questions may provide clues to their leanings. However, surprises are entirely possible, and the Court’s rulings will not be known until—most likely—the latter part of June.