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Challengers lose on health arguments

The Supreme Court on Tuesday resolved a dispute over the time for arguments in March on the new federal health care law, and sided with the suggestions of the U.S. Solicitor General, not those of the 26 states and others challenging key parts of that law (the Affordable Care Act).  The order puts into effect a schedule that the challengers had argued would unfairly favor the federal government’s legal positions.  Overall, the argument time was expanded from five-and-a-half to six hours.  The Court gave no explanation for choosing as it did, although it does reflect the Justices’ usual habit of trusting the federal government as a sort of outside legal adviser.

Four issues before the Court will be argued on three successive days, March 26, 27 and 28, and the two main combatants had disagreed over the arrangements for only two of those issues.    As both sides had suggested, the Court expanded from 60 to 90 minutes the March 6 hearing on whether the federal Anti-Injunction Act bars anyone from challenging the ACA’s core provision — the mandate that virtually all Americans must obtain health insurance by the year 2014.

But the Court divided up that time as the Solicitor General had urged: 40 minutes for Robert A. Long, the Washington lawyer named to argue the position that all challenges to the mandate are forbidden by the Anti-Injunction Act, 30 minutes for the Solicitor General and only 20 minutes for the states, the National Federation of Independent Business, and four of the NFIB’s individual members.   The challengers had wanted the 90 minutes split equally, with 30 minutes for each arguing party.   They also wanted to split the time given to them, but the Court did not allow that, requiring them to choose one lawyer to make that part of the argument.

On the March 27, two-hour argument on the individual insurance mandate, the Court granted one hour to the Solicitor General, and 30 minutes each to the states and the NFIB — the same as the Solicitor General had requested, except that the Court explicitly divided up the challengers’ hour into equal parts for the states and for the NFIB, as the challengers had wanted.   The Court did give the states and the NFIB separate times for that argument.

On the disagreement among the main parties over the 90 minutes to be heard on March 28 on the “severability” issue (testing what parts, if any, of the ACA will survive if the individual mandate is nullified), the Court adopted the Solicitor General’s plan — 30 minutes for the states and the NFIB together (which they will not be free to divide between them), 30 for the Solicitor General, and 30 for Washington lawyer H. Bartow Farr, named by the Court to argue that none of the remainder of the ACA need fall even if the mandate does.   The challengers had wanted 40 minutes of the 90, with 25 each for the Solicitor General and for Farr.

The Court divided up evenly, between the Solicitor General and the 26 states (the NFIB is not involved on this issue), the one hour of argument set for March 28 on the constitutionality of the expansion of the Medicaid program for the poor.   That was what the two sides had recommended.

The Tuesday order appears to be the last one on the division of argument time, although the states and NFIB presumably would be free to ask the Court to reconsider.   They have two lawyers who were anticipating sharing their arguments — Washington attorneys Paul Clement and Michael Carvin.   The only argument the Court allowed them to divide up was that on the individual mandate, rejecting a division of their argument on the Anti-Injunction Act and on the severability issue.

Meanwhile, Chief Justice John G. Roberts, Jr., has apparently made no decision on pending requests that the Court allow live TV and radio broadcast coverage of the health care arguments, or at least to release the audiotapes of the arguments on the day they are heard.


Recommended Citation: Lyle Denniston, Challengers lose on health arguments, SCOTUSblog (Feb. 21, 2012, 2:32 PM),