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Health care schedule set

The Supreme Court on Thursday spelled out a schedule for filing of written arguments in the three cases on the constitutionality of the new federal health care law.   The period for filing opens 0n January 6 and runs through March 13.   No date is set yet for the two days planned for oral arguments, but the briefing schedule suggests that those hearings will occur in the week of March 26.  Lawyers, who proposed the briefing schedule, told the Court they will make suggestions later for dividing up the oral argument time.  The briefing schedule is here.  The lawyers’ letter proposing a schedule is here.

The Court will be examining four separate issues, and each was assigned its own briefing schedule.   The schedule was somewhat more complex than usual for two of the four issues, because the Court has appointed an independent lawyer to argue positions on those issues that neither one of the parties involved will be making.  Groups or individuals joining in the case as amici are to file separate briefs on each of the issues they are discussing, rather than an omnibus brief.   The covers of the printed amici briefs’ covers must disclose what issue is being addressed in each brief.

The key part of the Affordable Care Act — the mandate that all Americans must obtain health insurance by 2014 — will be briefed with the U.S. Solicitor General going first in defense of the mandate’s validity.   That brief is due on Jan. 6.   The 26 states and others who are challenging it will reply on Feb. 6, and the SG will reply by March 7.

The Court-appointed lawyer who will be arguing that all challenges to the mandate are barred by the federal Anti-Injunction Act will file first on that issue, on Jan. 6, with separate briefs by the Solicitor General and the challengers to the mandate due on Feb. 6.  Both the SG and the challengers contend that the Act does not bar the challenges.  The Court-appointed amicus reply is due March 12.

The mandate’s challengers are to file the opening brief on the so-called severability issue — what parts, if any, of the law can survive if the insurance mandate is struck down — on Jan. 6.  They are asking that all of the law be invalidated if the mandate falls.  The Solicitor General, arguing that much but not all of the remainder of the law can survive even if the mandate is nullified, is to file on Jan. 27.   The Court-appointed lawyer arguing that nothing else should fall even if the mandate does is to file a brief on Feb. 17.   The Solicitor General and the challengers to the mandate will reply by March 13.

Finally, the question of the constitutionality of the new law’s expansion of the federal Medicaid program, providing health care for the poor and the disabled,  will be briefed first by the states challenging that expansion, on Jan. 10.   The brief of the Solicitor General defending that expansion is due on Feb. 10; the challengers’ reply is to be filed by March 12.

For the amici (other than the Court-appointed lawyer), they are to file briefs as they would under the Court’s Rule 37, except that amici filing on the severability question are to be filed on the same date as the party or Court-appointed lawyer whose position they support on that question.

The lawyers, in the letter that Solicitor General Donald B. Verrilli, Jr., sent to the Court earlier in the week outlining the attorneys’ agreed suggestions on briefing, said they were still conferring on the allocation of argument time, and would make a proposal on that “in the near future.”   The Court, in its briefing order, accepted almost all of the dates the attorneys had recommended.

The Court has scheduled a total of 5 1/2 hours of oral arguments on the four issues.   Earlier, it had told counsel that it would hear the individual mandate and Anti-Injunction Act issues on the first day, and the severability and Medicaid issues on the second.   It is unknown at this point whether the Court will stick to that plan when it issues an argument schedule.



Recommended Citation: Lyle Denniston, Health care schedule set, SCOTUSblog (Dec. 8, 2011, 5:25 PM),