The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a key provision of the new law has been decided differently by federal appeals courts.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.  (The filings in the cases can be found on the Court’s website, here.)

Four of the petitions were filed by challengers, and together they raise all of the key issues the Justices may want to consider as they examine the massive Affordable Care Act passed by Congress at the urging of President Obama.  The fifth petition is the federal government’s, defending the constitutionality of the insurance-purchase mandate that is crucial to the overall law’s functioning.  The government also is urging the Court to confine its review to only a few vital questions.

The sixth pending petition involves an attempt by the state of Virginia to get back into the constitutional fray; the Fourth Circuit Court ruled that Virginia did not have a legal right to bring its court challenge, since it could not show that the state would suffer any harm from the new insurance mandate.   That petition will be ready only when the federal government files a response, which currently is due on Nov. 3.  The government has not hurried its filing of a response to Virginia’s filing, as it did in most of the others.

It will be up to the Justices themselves to decide (a) which petitions, if not all of the five, should be reviewed, (b) which issues it is ready to decide, (c) how to line up the lawyers on each side of those issues, and (d) how much time to allow for oral argument.   Because the five are now ready for the Court’s consideration, a grant of review soon would assure that they could be heard and decided during the current Term of the Court, which is expected to run until near the end of June.  An oral argument in late March appears probable.

Here are the five petitions that the Justices will consider Nov. 10, the issues each seeks to raise, the lower court involved, and the petitioners:

* Thomas More Law Center v. Obama (docket 11-117).   Did Congress have authority under the Constitution’s Commerce Clause to adopt the requirement that virtually all adult Americans obtain health insurance by the year 2014?  Does that mandate apply to private individuals who do not have health insurance?  (From the Sixth Circuit Court.)  (Filed by a conservative legal advocacy group and three individuals.)

* National Federation of Independent Business, et al., v. Sebelius (11-393).  Should the entire new law be struck down because no part of it can be severed from the insurance mandate, which was beyond Congress’s power? (From the Eleventh Circuit Court.)  (Filed by a business trade group and two individuals.)

* U.S. Department of Health and Human Services, et al., v. Florida, et al. (11-398).  Did Congress have authority, under the Commerce Clause or the General Welfare Clause, to enact the insurance mandate?  Are all challenges to that mandate barred by a federal law, the Anti-Injunction Act?  (From the Eleventh Circuit, and, on the anti-injunction issue, the Fourth Circuit.) (Filed by the Justice Department for the Obama Administration.)

* Florida, et al., v. H.H.S. (11-400).  Did Congress lack the authority to expand the Medicaid program for health care for the poor and the disabled, by imposing onerous conditions on the states?  Did Congress violate the rights of states as employers by imposing new health care obligations on them?  Did Congress lack power to pass the insurance mandate, and, if it had no such power, must the entire law be struck down?  (From the Eleventh Circuit.)  (Filed by 26 state governments or officials of states.)

* Liberty University, et al., v. Geithner, et al. (11-438).  Does the federal Anti-Injunction Act bar all challenges to the insurance mandate? Did Congress lack power to pass the insurance mandate?  Did Congress lack power to impose new health insurance obligations on private employers?  (From the Fourth Circuit.)  (Filed by a university employer and two individuals.)

The petition not distributed to the Justices is Commonwealth of Virginia, et al., v. Sebelius (11-420).  Aside from raising the same issues as other petitions do on the insurance mandate, Virginia seeks to raise the issue of its standing to pursue its challenge, on the theory that is has suffered “sovereign injury” because its own state law to protect its citizens from the federal insurance mandate is at issue.  (From the Fourth Circuit.) (Filed by the state and its attorney general.)

The Court’s options on the Virginia petition are to grant it later and include it with the others for briefing and oral argument, deny review altogether, or hold it until it acts on the other petitions and then dispose of it in light of the decision.

If the Court decides it wants to expedite the briefing schedule in any granted cases, the grant could be announced as early as the day of the Conference, November 10.  It could also do so on the following Monday, November 14.   Even though the initial discussion of the controversy is scheduled for November 10, the Justices are not obliged to make up their mind for or against review at that time.  However, since the lawyers involved have moved rapidly to prepare the filings, it does seem more likely that the Court, too, would act promptly.

 

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, Health care cases set for Nov. 10, SCOTUSblog (Oct. 26, 2011, 11:42 AM), http://www.scotusblog.com/2011/10/health-cases-set/