THESUPREMECourt has agreed earlier this month to decide whether requiring
Americans to buy health
insurance is constitutional.
Oral arguments will
be held in March, and a
decision is expected by
June, just as the critical
electioneering for the next
President, the entire House
and one-third of the Senate
begins.
However, in a sweeping decision, the court also
agreed to decide a procedural question that could
allow it to postpone dealing
with the core issue for several years.
It did so by agreeing to review whether
the insurance-mandate penalties included
in the Patient Protection and Affordable
Care Act are a type of tax that can only be
challenged after it is collected, rather than
before.
If the court determines that it is premature to deal with the core issue, the court
would not have the legal power to consider
such a challenge until people are required to
pay that tax starting in January 2014, legal
scholars say.
Lower courts ruled for the Obama administration on this issue, especially the
Fourth U.S. Circuit Court of Appeals, which
ruled 2-1 that it did not have jurisdiction
to decide the constitutionality of the law
because the Anti-Injunction Act requires
the person to pay the tax first, seek a
refund, and in later proceedings raise the
constitutional issue. This court sidestepped
dealing with the mandate issue, saying it
was premature.
Opponents of the legislation and who
believe the mandate to buy insurance is
unconstitutional have voiced concern that
the High Court could sidestep the critical
mandate this year by supporting the 4th
Circuit on the procedural issue.
most conservatives, view the insurance
requirement as an unprecedented intrusion
on individual liberty. They contend that Congress cannot use its interstate commerce
powers to regulate citizens who choose
not to participate in the health insurance
market.
The core constitutional issue revolves
around the Commerce Clause of the constitution.
The court also agreed to hear the challenge of 26 states of the health law’s expansion of Medicaid, the combined federal/
state program that subsidizes health care
for low-income Americans.
George T. Patton, Jr. a partner at Bose
McKinney & Evans LLP in Indianapolis and
Washington and an expert in appellate law
said, “In my view, it is no surprise that the
U.S. Supreme Court granted review given
that a federal appellate court (the Eleventh
Circuit) struck down an act of Congress
as unconstitutional, other federal appellate
courts (the D.C. Circuit and Sixth Circuit)
upheld the law as constitutional, and yet
another federal appellate court (the Fourth
Circuit) found that there were jurisdictional
problems with deciding the constitutional-
ity now.”
Patton also said that the U.S. Supreme
Court granted the petitions for Writ of
Certiorari from the Eleventh Circuit’s 2-1
decision striking down the law as unconstitutional. The Court did not act on Petitions
from other circuits. Generally, Patton said,
by historical percentages of 70-80%, the
Court takes cases to do something different
than the federal court of appeals.
He said the five and half hours of oral
argument granted by the U.S. Supreme
Court will allow for a full airing of the legal
issues. “This amount of oral argument is
much more than the regular hour per case
usually set,” Patton said.
Then again, Patton noted, the Court
granted three petitions. “It will be interesting to see what order the Court sets the
cases for oral argument,” he said.
He cited comments by Lyle Denniston,
a reporter and non-lawyer who has been
covering the Supreme Court for 52 years,
that, “The allotment of five-and-a-half 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 four hours.”
Patton cited the amount of time the
Court has allotted to the various issues,
perhaps implying the order and logic tree of
the oral arguments:
