Posted on November 14, 2011 at 10:49 am by Lyle Denniston
FINAL UPDATE at 11:09 a.m. A separate post, coming shortly, will provide further analysis of the grants. (It is posted above this.)
Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it. It is unclear, at this point, whether all of the cases will be heard on a single day. (UPDATE: The Court has informed the lawyers involved that the case will be argued over two days.)
The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.
Accepting the constitutional dispute on its very first examination of the cases brought to it speedily by lawyers, the Court wrote three separate orders outlining how it would deal with the cases. That meant that they would not be grouped together, but that they likely will be heard close together, if not back-to-back on a single day.
The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)
Beyond the Court, there is a hot political debate going on across the country now on federal vs. state power, and the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.
Here, in summary, is what the Court’s orders on Monday did:
* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Department of Health & Human Services [11-400]), cases consolidated for 90 minutes of oral argument.
* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Department of Health & Human Services v. Florida, et al.), two hours of oral argument.
* Parties directed to brief and argue whether the lawsuit brought by the states challenging the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398), one hour of oral argument. (That order appeared to be limited to reviewing whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.) (UPDATE: It appears, on a closer reading of the grants, that the Anti-Injunction Act will be explored as a limitation on challenges to the mandate by either private individuals or states.)
* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., v. Department of Health and Human Services case, 11-400); one hour of oral argument.