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Health care challengers’ view on argument

The 26 states and others that are making a sweeping challenge to the constitutionality of all parts of the new federal health care law have argued that they should be given at least equal time to argue when the Supreme Court reviews the key provisions of the law at hearings in March.   Otherwise, they argued, the arguments on the Affordable Care Act will be unfairly weighted in favor of the federal government and of the ACA itself.  In a motion that has now become available, the 26 states, the National Federation of Independent Business, and four individuals differed with some of the hearing suggestions made this month by the government’s top lawyer, Solicitor General Donald B. Verrilli, Jr.  (The SG’s views, and the government motion, were discussed in this post.  The opposition views were not then available.)

The challengers’ plea suggested that the federal government was pushing an arrangement that would go the furthest to shield the new law’s central provision — the individual insurance-purchase mandate — as well as other parts of the law from being nullified.  The states and their allies, by contrast, contended that they should not be shortchanged as they try to get all of the law struck down.

The challengers joined SG Verrilli in asking the Court to expand from 60 to 90 minutes the argument to be held on March 26 on what is known as the Anti-Injunction Act (AIA) issue.  That is the question of whether that Act bars anyone from making a challenge to the individual insurance mandate, on the theory that it is a tax provision not subject to legal protest until after it has gone into effect (in 2014).  But the SG’s view that the challengers should only get 20 minutes of the expanded 90-minute time drew their sharp protest, and they asked the Court to give them 30 minutes — an equal share with the federal government and with the Court-appointed lawyer drawn into the case to defend the Anti-Injunction bar.

The SG would allot the Court-appointed amicus lawyer Robert A. Long 40 minutes, and the federal government 30 minutes of a 90-minute hearing.  While the federal government is claiming that it is taking a middle-ground position on that issue, the challengers said, it actually is more closely aligned with the position Long will be taking since they will join in “the bottom line” view that the challenges to the individual mandate should fail.   The government argues that the mandate is constitutional on the merits, and Long is arguing that no one may challenge it, the new motion noted.

While the government does not share Long’s view that the specific challenges to the mandate are barred by the Anti-Injunction Act, the challengers’ motion said, the government actually has a long-term interest in having that bar interpreted broadly in order to insulate other tax provisions from pre-enforcement challenges in court.   The new motion contended: “The federal government is at least as concerned, if not more concerned, with rebutting the [challengers’] broader arguments about the AIA’s inapplicability as with securing a narrow exception to the AIA to cover the facts of this case but no other.”   The government, it added, “can win by losing” on its AIA position.

Giving the federal government, Long, and the challengers 30 minutes each, the new motion asserted, will divide up the time properly, and give each of the three counsel appearing on the AIA issue ample time to make their points.   But, the motion added, if the Court believes that Long should have more than an equal 30 minutes, any extra time should come out of the government’s allotment so that at least one-third of the argument time will be allocated “to parties without an institutional interest in the AIA’s broad applicability.”

(In another part of the motion, the challengers asked the Court to divide equally any time allotted to challengers, with the states getting half and the NFIB half.)

SG Verrilli has urged the Court to divide up in three equal ways the 90 minutes that will be devoted to the so-called “severability” issue — that is, the question of what parts of the new health care law — if any — can remain in force if the individual mandate is struck down.  (That argument will be heard as the first of two issues on March 28.)  That allotment would provide 30 minutes to the federal government, which is arguing that only two provisions of the law must fall with the mandate; 30 minutes to Court-appointed amicus lawyer Bartow Farr, who is arguing that no other parts of the law need to fall, and the states/NFIB parties, who are contending that all parts of the law must go down with the mandate.

In their new motion, however, the states/NFIB argued that the federal government once again is more closely aligned with Farr than might appear.  “It is not even clear,” they said, “that the federal government disagrees with the bottom-line position” that Farr is taking.  The government, the motion said, is arguing that none of the challengers have “standing” to make the severability argument as it applies to the individual mandate (because neither the states nor NFIB would be covered by that mandate).

Moreover, the motion asserted, the real debate over severability focuses on whether all of the health care law fails if the mandate fails.   That illustrates, it added, that the government and Farr have only a small difference between them on what if anything should go down with the mandate.

So, the challengers told the Court, they should get 40 minutes of the 90 minutes on severability, and the government and Farr should get 25 minutes each.   That, it added, is actually generous to the government and Farr as they seek to preserve all or most of the health care law.  If the Court prefers to give either the government or Farr more than 25 minutes, the motion suggested, it should switch it between them and not subtract it from the challengers’ allotment of 40 minutes.

There is no dispute among the parties over how the Court will allot time on the other issues the Court will be reviewing: 60 minutes each for the federal government and for the states/NFIB on the individual mandate’s constitutionality (being argued March 27, with no amicus involved on the issue), and 30 minutes each for the federal government and the states on the expansion of the Medicaid program for the poor (being argued as the second issue on March 28, with no involvement by an amicus or by the NFIB).

Since the parties are in disagreement on the argument array on the Anti-Injunction Act and severability questions, it will be up to the Court to decide what final arrangement should be made.  Presumably, that will be done some time in advance of the March arguments.





Recommended Citation: Lyle Denniston, Health care challengers’ view on argument, SCOTUSblog (Feb. 9, 2012, 4:19 PM),