A Preview of this Week at the Supreme Court

by: tmess2

Sun Mar 25, 2012 at 20:42:01 PM EDT

In an unusual move, the Supreme Court set an entire week's argument docket aside for the arguments on the Affordable Care Act.  (The Supreme Court only has fourteen weeks of argument for the entire year in a typical year and normally hears six separate cases during a week). 

For more detailed information about the arguments Scotusblog has done an excellent job of following the cases and has a case page which includes a separate detailed analysis for each of the four issues.

Monday's morning argument deals with the Anti-Tax Injunction Act.  This law, originally passed after the Civil War, requires that most lawsuits challenging the validity of the tax must be postponed until after a challenging party has actually been required to pay the tax.  At an early point in the case, the Administration suggested that the sum to be paid by those who do not get insurance might qualify as a tax.  While the Administration no longer takes this position, the Fourth Circuit (and one of the judges on the DC Circuit) have held that the Anti-Tax Injunction Act does apply.  Since the Administration has backed off from its earlier position, the Court appointed a lawyer to argue on behalf of the position taken by the Fourth Circuit. 

Three key things about the Anti-Tax Injunction Act.  First, it applies to other taxes beyond the Affordable Care Act.  Thus, the Administration has taken a position supporting a broad interpretation of the Anti-Tax Injunction Act (merely suggesting that this fee is not a tax), but the challengers (the National Federation of Independent Businesses and 26 states) have argued for a narrow interpretation that greatly restricts the availability of the act in other cases.  Second, the biggest hallmark of the Rehnquist and Roberts Courts have been a tendency to support procedural rules that prevent parties from ever raising a claim in court.  Third, this issue is really about the minutia of statutory construction what did those members of Congress in the 1860s mean by a tax and does the fee established by the Affordable Care Act fit that technical definition.

The Court has given the Court appointed attorney 40 minutes, the Solicitor General 30 minutes, and the challengers 20 minutes.  (Guess who is not getting what they want on this issue)

Tuesday's morning argument is the big enchilda -- the constitutionality of the individual mandate.  Not much more needsto be said about this issue that has not already been said.  There are three clauses of the Constitution at issue here (all part of Article I, Section 8) -- the commerce clause, the tax and spend clause, and the necessary and proper clause.  While the severability argument is not until Wednesday, the positions taken by the parties on that issue show that the Administration has thought more about the Necessary and Proper Clause than has the other side.  Two things to look for when the audio and transcript is released on Tuesday afternoon.  How many references are made to the 1792 Militia Act which required every able-bodied man to own a firearm?  Is any mention made of the fact that one of the plaintiffs had to file bankruptcy due to health care costs?

The time split on Tuesday is 60 minutes for the US, 30 minutes for the states, and 30 minutes for the National Federation of INdependent Businesses.

Wednesday's morning argument is about the issue of severability -- which issues survive if the individual mandate is struck down.  This issue could be disaster for the insurance industry and the plaintiffs.  The Eleventh Circuit found that everything but the individual mandate was severable.  The Administration does not go quite that far (see the discussion of the constitutionality of the individual mandate).  Instead, they have take the position that the guaranteed coverage issue and the community ratings issue (i.e. the ban on using pre-existing conditions to ban coverage or charge a higher rate) are intricately connected to the individual mandate.  Of course, those two issues are clearly within the scope of the commerce claus, thereby making the individual mandate necessary and proper.  The States and the NFIB have taken the position that nothing is severable.  The Court-appointed attorney has taken the position that everything is severable.

The key on this issue is the recent tendency of the court (in most cases) to presume severabliity and strike down only those provisions which absolutely have to be rejected. 

The challengers did slighlty better on this issue than on the Anti-Tax Injunction Issue, but they still only got 30 minutes with the US also gtetting 30 minutes, and the court-appointed attorney getting 30 minutes. 

Wednesday afternoon's argument is on the changes to medicaid.  The actual issue is one of the great "white whales" of constitutional theorists -- the concept of an unconstitutional condition on a spending program.  A lot of scholarly material has been written on when the rest of the constitution prohibits the government from attaching a condition to a grant (which would otherwise be constitutional under the tax and spend clause).  And periodically, the Court has discussed the possibility that a condition might be unconstitutional, but the Supreme Court has never found a condition on a grant to be unconstitutional.

The last time that the Supreme Court looked at conditions on spending was in the late 1980s when South Dakota challeged restrictions on highway funding (specifically the requirement that tied a small portion of highway funding to raising the drinking age to twenty-one).  The Supreme Court found that, given the small size of funding involved, the condition was not overly coercive. 

While the amount of money involved with medicare is a substantially larger amount of money, the condition goes to the core of the program (who is to be coverred and what is to be covered).  It would be a shock if the Supreme Court struck down the requirements placed on medicaid.  If they do, it would dramatically alter joint federal-state programs.  With only the States and the US involved, both sides are getting 30 minutes each.