RUTHFULLY YOURS

It’s official. The Supreme Court will consider challenges to Obamacare stemming from the Eleventh Circuit decision striking down the law’s individual mandate.

In that case, 26 states and the National Federation of Independent Business (NFIB) partially won their suit ^[1], claiming that the Patient Protection and Affordable Care Act (PPACA) should be voided as unconstitutional. The Eleventh Circuit ruled that the mandate — considered by many to be the linchpin of the overhaul of the U.S. health system — was unconstitutional. But the court declined to strike down the law in its entirety.

The Supreme Court agreed to hear arguments on a number of issues raised in the suit: severability, Medicaid, and the Anti-Injunction Act, to name a few. Specifically, it will hear arguments on whether Congress “had the power under Article I of the Constitution to enact the minimum coverage provision.”

The Court directed the parties to brief and argue whether the Anti-Injunction Act (which bars suits to stop a tax before it has been imposed) bars NFIB’s and the states’ challenges to the PPACA’s minimum coverage provision.

The Court will also hear arguments on whether the individual mandate provision is severable from the rest of the PPACA. The parties will address whether the law “must be invalidated in its entirety because it is non-severable” and whether the mandate “exceed[s] Congress’s enumerated powers.”

Last, the Court will hear from the states’ petition whether Congress exceeds its enumerated powers and federalism generally by “coerc[ing] States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under [Medicaid].”

By our count, the oral argument will be at least four and one-half hours long — a record time — and argued by an “all-star” lineup of Supreme Court litigators ^[2]. A typical Supreme Court argument is one hour. The Court has rarely extended oral argument longer than two hours, but has done so in important cases such as the 2003 challenge to the Bipartisan Campaign Reform Act. The Court has not set a date for argument, but it could be as early as this March.

The Court’s term is set to end on June 25, and the Court would usually announce all its decisions for the term by then. Occasionally the Court has extended its term or ordered reargument (as in Citizens United v. FEC).

We are likely to get a decision by June 25 — right in time for the final months of the political battle for the November election.