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Health care: Now, it’s the Court’s turn


Twenty months after President Obama signed into law the massive new federal health care bill, and with politics still reeling over the controversy that the law has stirred up, the Supreme Court’s presumably calmer reaction to the law is set to begin Thursday, and then play out over the next seven months.   Not many constitutional disputes of the dimension of this one reach the Court and get decided that quickly, but everyone seems to be in a hurry to get a judicial answer on the validity of the Affordable Care Act — the most important piece of social legislation in decades.  In one scenario, the entire law could fall; in another, all of it could survive.  But there could be something in between.

The nine Justices (and it seems clear that all nine will join in the review) are scheduled to take only a preliminary step this morning: deciding whether to hear some or all of the five separate appeals that are ready for their initial examination.  As if the Justices or the Nation needed a reminder that the political world is still debating the law, the voters in Ohio — by majorities in every county — on Tuesday approved by a margin of 66 to 34 percent a new state constitutional amendment seeking to defy the main provision of the new federal law.  That provision mandates that nearly every American must obtain health insurance by 2014, or pay a penalty with their tax returns in 2015.  That amendment, “Issue 3,” declares that no one in the state could be compelled to do that — a declaration that may have political, but probably no legal, significance.

The law’s individual mandate provision was designed to draw enough people into the health insurance market to assure that insurance companies can afford to provide nearly universal coverage without significantly raising premiums and without turning away people who have preexisting health conditions that require medical treatment.   It has been estimated that the overall scheme could result in health care coverage for perhaps 95 percent of the Nation’s people.  It inaugurated a sweeping regulation of the health insurance market, which makes up 17 percent of the nation’s economy.

The insurance-purchase mandate, and the penalty attached to it, are at the very center of the cases now awaiting the Justices’ response.   If those are ruled to be beyond Congress’s legislative authority, much — and possibly all — of the massive new law will collapse, too.   And the validity of those provisions is what has produced the sharpest division between the federal appeals courts that have ruled on them so far.   That very division is probably the strongest point encouraging the Justices to accept review, and move toward a final ruling before their summer recess begins late next June.

President Obama’s signing of the bill shortly before noon on March 23 of last year, using 22 separate pens, marked the fulfillment of an ambitious — but long frustrated — effort to make basic changes in the way health care is provided to Americans.   The President, in making the measure law, said he was doing so partly in tribute to “all the leaders who took up this cause through the generations — from Teddy Roosevelt to Franklin Roosevelt, from Harry Truman, to Lyndon Johnson, from Bill and Hillary Clinton, to one of the deans who’s been fighting this so long, John Dingell [a Democratic Representative from Michigan).  To [the late] Ted Kennedy…”   The President took note of “all of the overheated rhetoric” over the bill, but added that, when he signed it, that controversy would have to “confront the reality of reform.”

But, even at that moment, it was apparent that, until the courts had their say on constitutionality, that “reality” would be in at least temporary suspension for the most important parts of the new law.   In fact, while the President was making the last pen stroke on his signature, legal aides for the state of Virginia were on their way to a federal courthouse in Richmond, Va., poised to file the first constitutional challenge to the insurance mandate, claiming that it ran counter to a Virginia state law similar to the measure just adopted by the voters in Ohio.  That case was filed 34 minutes after the President finished signing the measure.  (UPDATE: Florida’s attorney general has said that the lawsuit of a group of states against the bill, ultimately involving 26 states, was filed at 12:02 p.m. that day, some 28 minutes ahead of Virginia’s.)

Nearly 30 other lawsuits eventually were filed, and federal judges at both the trial and appeals level would move the cases along with dispatch.   Keeping up that hectic pace, the lawyers on all sides quickly moved the cases as they were decided on to the next level, and then on to the Supreme Court in Washington.   That put the five ready petitions on the agenda for the Justices’ Conference this week.   Ironically, the case that Virginia had filed promptly will not be before the Justices today; it was not ready in time, but is due to be considered at the Conference set for November 22.   It could wind up on an inactive status as some or all of the others proceed.

Although no definite timetable has been set yet for the Court’s review of the new law (if some petitions are, in fact, granted review), it appears that the Court would hold an extended hearing either in late Februry or in March.   Whether the Justices will announce their response following this morning’s Conference, or wait until next Monday, with the regular release of other orders, is not clear.  There is, though, no assurance that the Court will definitely take action after this initial look, but lawyers involved have been doing everything that they could to try to assure prompt action.

What is very likely, however, is that if the Court does take on the controversy, any final ruling — whatever its scope and content — will come in the closing weeks of the current Term.  That would mean its release in late June in the midst of the political campaigning for the Presidency and Congress, pointing toward the general election next November.   The Justices would not choose that timing deliberately; it is just the way the judicial calendar would work if the Court proceeds to a final ruling this Term.

Whatever the Court does, the health care issue is sure to be a debating point in the election campaign.  Indeed, it has already been a political flashpoint among the Republicans seeking the presidential nomination of their party.   If the Court were to uphold the law, the political discussion may well focus on whether the next Congress should repeal at least the major parts of the law.  If the Court were to strike it down, the political conversation then would probably focus on how to salvage some of the law’s major provisions.

There is also a larger theme in current American politics in which the new health care law figures — the debate over national governmental power centered in Washington.  The law’s critics cite it as the primary example of a bloated form of federal authority.  Its defenders retort that it is a long-awaited, necessary way for government to help protect Americans who need a social safety net.

Although there has been some talk, in political circles, that Justices Clarence Thomas and Elena Kagan might not take part in a ruling for reasons that their political challengers believe are convincing, there has been no indication that either of them would choose to disqualify themselves, and that is a choice that only they can make.  (Thomas has drawn some criticism over the role of his wife, Virginia Lamp Thomas, as a political advocate aligned with opponents of the health care law, and Kagan has drawn some challenges on the theory that she may have had something to do with the law while she was in the Obama Administration, a role that she has denied having.  She had served as U.S. Solicitor General.)

If the Court opts to take on all of the issues that have been laid before it, this — in summary — is what will be at stake:

* The insurance-purchase mandate, due to take effect in 2014, and widely regarded by challengers as the most controversial single provision.

* A financial penalty, set as a percentage of household income, for those who do not have insurance by 2014.   The penalty is to be paid with one’s federal tax return.

* If those two provisions fail, what parts of the law would fall with them, or might the entire law go down.   (The government has said that, without the mandate and penalty, the assurance of coverage for those with preexisting medical conditions, and a curb on higher insurance premiums, could not survive.)

* Tax penalties on larger employers (including state and local governments as employers) if they do not provide adequate health insurance coverage for their full-time employees.

* Expansion of the federal-state Medicaid program, providing subsidized health care for the poor and the disabled, so that individuals with incomes below 133 percent of the poverty level are covered.  Through the year 2016, the federal government is to pay 100 percent of the added cost, but that will decline over the period running to 2020 and beyond, with states having to make up the rest (but only to a maximum of 10 percent).

These are the cases that are ready for the Justices, in the order in which they were filed: Thomas More Law Center, et al., v. Obama, et al. (11-117); National Federation of Independent Business, et al., v. Sebelius, et al. (11-393); Department of Health & Human Services, et al., v. Florida, et al. (11-398); Florida, et al., v. Department of Health & Human Services, et al. (11-400). and Liberty University, et al., v. Geithner, et al. (11-438).

The state of Virginia’s case is Virginia, et al., v. Sebelius, et al. (11-420).

When the Court announces its order, it will indicate which if any of the cases it plans to hear.  In addition, it may spell out which issues it has chosen to decide if it does not grant all the petitions without limit, and it may specify how much time it will provide for oral argument.   It may not set an actual argument date in such an opening order.












Recommended Citation: Lyle Denniston, Health care: Now, it’s the Court’s turn, SCOTUSblog (Nov. 10, 2011, 12:10 AM),