Rule of Law

SCOTUS could set health reform path

By: Jennifer Haberkorn

The nine Supreme Court justices could decide as soon as Thursday whether — and how — to wade into the politically charged legal waters of health reform.

The Obama administration has asked the court to jump in, so it appears more than likely the justices will agree to decide whether the health law’s requirement that nearly all Americans obtain insurance is constitutional.

The justices will have to decide which of four pending cases challenging the individual mandate the court should hear and whether to take up other aspects of the law as well.

The justices are scheduled to meet for a private conference Thursday, and they could make a decision on how to go forward. The court typically would release its decision on Monday, but it could come as soon as Thursday afternoon. The justices could also delay a decision to a later conference.

Assuming they agree to hear the case, oral arguments likely would take place in the spring, and a ruling would come in June — just in time for the presidential nominating conventions.

Here’s what we’re watching:

Which case or cases will get the nod?

Four similar cases are challenging the individual mandate and several other pieces of the 2010 health law. Assuming the justices agree to address the mandate’s constitutionality, they will have to decide which case, or cases, to take.

The lawsuit brought by 26 states, led by Florida, and the National Federation of Independent Business has the best shot. “I would expect it to be the Florida case because that’s the one the federal government has focused on as the case for review,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. The Justice Department has suggested the court take that case, more than half the states are on board and it combines the most prominent legal questions about the health legislation. The other cases have been brought by the Thomas More Law Center, Liberty University and Virginia.

Which other questions will the court consider?

All of the pending petitions ask the court to decide whether the mandate is constitutional. But they all ask the court to consider other questions, too, such as whether the law’s Medicaid expansion and employer requirements are legal. The justices will have to decide how many issues they want to take up. “With all these petitions, I think what we’ll see is an order specifying which questions to be addressed,” said Kevin Walsh, a University of Richmond law professor. But the health reform issue has already proved to be a bit of an “outlier” compared with a typical Supreme Court case — there are many petitions, many legal questions — and intense political interest. “Nothing would strike me as unusual,” Walsh said.

How much focus will the justices put on the Anti-Injunction Act?

One of the issues that several parties — including the Justice Department — want the court to review is whether a federal tax law, known as the Anti-Injunction Act, bars review of the mandate’s constitutionality until at least 2014 — when the mandate and accompanying penalties for noncompliance go into effect.

The 4th Circuit Court of Appeals in September said the AIA — which requires Americans to file a tax before they can challenge it in court — applies to the health law’s penalties. Other circuits have disagreed. “It’s a live issue,” said Walsh, who argues that the AIA does apply.

The Supreme Court could indicate in its order that it wants to spend substantial time on the issue. And as all parties in these four health reform lawsuits argue that the tax law does not apply, the court could appoint an outside party to argue during oral arguments that it does. That assignment could come as soon as the order is issued.

Will the justices take up the severability question separately?

That is the biggest open policy question: If the mandate is struck, what else has to go down with it? The Justice Department and the NFIB want the court to spend substantial time on the issue during oral arguments. The administration argues that only two insurance reforms — requirements that insurers accept all applicants even if they have pre-existing conditions and apply so-called community rates — would have to go with the mandate. The law’s opponents want the entire health reform legislation scrapped.

Will one of the justices recuse?

Advocacy groups have tried to put public pressure on Justices Elena Kagan and Clarence Thomas to remove themselves from the case. Opponents of the law argue Kagan should recuse because she may have been involved in the strategy against the lawsuits while she worked in the Obama administration. Supporters of the law argue Thomas has a conflict because his wife is working to defeat the law. Neither have indicated yet that they would recuse themselves from deciding the case — and neither is expected to. But it would be noteworthy if they didn’t participate in this week’s discussion on how to move ahead.