Day 1 -- Monday March 26 -- 90 minutes of argument
This day will likely focus on procedural issues. Very simply, every case argued in front of the Supreme Court has two main components: procedure and substance. Before a Court can rule on the substance of the case, the exciting and controversial issues, it must first ensure that the claimants used proper procedure to get into court. Procedure is the golden bullet. If you convince the Court that your opponent did not follow the right procedure, the case is dismissed. You win without having to argue the substance of the claim.
When the Court is assessing a case’s procedure they are looking at whether they (the Court) have jurisdiction and whether the case itself is justiciable. Day one will be filled entirely with arguments related to these questions. Officially the Supreme Court has only asked the parties to brief the issue of jurisdiction. But I will bet anybody a nickel that questions about justiciability will be raised by members of the Court today too.
QUESTION 1: THE ANTI-INJUNCTION ACT
The Anti-Injunction Act states that nobody can file a claim in an attempt to avoid the assessment or collection of a tax. This is a jurisdictional question. Congress decided that the citizenry should not be permitted to sue the government to complain that their taxes are too high before the taxes have even been assessed. One characterization of ACA is that it is simply a tax on people who do not have health insurance. If this is the case, it would seem fairly clear that the Anti-Injunction Act prevents them from getting through the door. Put another way, if the court decides that ACA is a law about taxes, the Anti-Injunction Act takes away the Court’s jurisdiction to even hear this case argued. This argument was found to be persuasive by the 4th Circuit majority and Judge Kavanaugh of the DC Circuit.
Unofficially, the Court will also address issues of justiciability. Loosely this means claimants must have standing, the issue must be ripe for decision and the question being asked can not be political in nature. The Court, not Congress, imposed these barriers to entry themselves. Article III of the constitution says courts can rule on any “cases or controversies” between parties. This has been interpreted to mean actual conflicts between parties with actual harm endured by the plaintiff. Getting a court to make a ruling on a law that has not been implemented/enforced yet is hard to do. Normally the Court will dismiss the case because it is not “ripe” for decision. Essentially they are saying to the plaintiff, “come back when you have been harmed.”
In that same vein, the Court has determined over the years that only a person who has been harmed may bring a case. In other words, a third party can not step in on behalf of an injured person to sue. They must be injured themselves. If the Court were to find that the Attorneys General were proxies for their citizenry they might dismiss the case because they lack “standing” to sue. A district court judge in New Jersey found this argument convincing and dismissed a case on these grounds. It is on appeal to the 3rd Circuit and no opinion has been issued.
The Court may also decide that the whole case is a “political issue” and therefore they should not wade into the fight. Usually this is reserved for questions on foreign policy, like going to war. But occasionally it will be applied to domestic cases as well. Judge Silberman, writing for the majority on the DC Circuit, said the arguments against ACA seem more politically based more than anything. He upheld the law.
Day 2 -- Tuesday March 27 -- 120 minutes of argument
This is the big day. The Court turns its attention to the substantive issues. The parties will be arguing whether the Constitution empowers the federal government to require every person to purchase health insurance. The burden is on the feds to show there is a provision in the constitution granting them the power to enact ACA. They will advance three arguments to support their contention that Congress and the President acted within the bounds of what is allowed.
QUESTION 2: Is it permissible for Congress to require all persons to carry health insurance?
Anchor a) the Commerce Clause. Defenders of ACA will say Congress, under Article I, has the ability to “regulate commerce ... among the several States.” Health services account for well over 15% of economic activity in our country. Of course Congress has the authority to regulate this market they will say. Opponents of the law say the Commerce clause only allows Congress to regulate ACTIVITY. An individual refusing to enter the market to purchase health care is not engaging in economic activity. Therefore, Congress can not pass a law requiring that person to act against their wishes.
The 6th Circuit found the ACA was within Congress’s Commerce Clause power concluding that 1) everybody eventually requires medical care and 2) everybody receives it regardless of their ability to pay. So even a person who is choosing “not to participate” will still end up receiving care in a hospital and therefore be participating in/active in commerce. The 11th Circuit reached the exact opposite conclusion. Finding that ACA goes beyond the scope of Congress’s power.
Anchor b) the Necessary and Proper clause. This is the last clause of the enumerated powers listed in section 8 of Article I. It states Congress has the power, “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution.” As you can see, a very broad grant of authority. Those attacking ACA argue this clause must be interpreted narrowly. That it can not be granting powers beyond Article I and therefore the only relevant question is whether the commerce clause is sufficient. Those defending say the Framers knew that sometimes Congress would need the ability to do a little more and this grant of power supports that view.
Anchor c) the Taxing power. Per Article I, Congress has the power “to lay and collect taxes, duties, imposts and excises.” A third argument advanced by those defending ACA is that it simply is a tax. People who do not obtain health insurance will be assessed a tax which will raise revenue for the treasury. Courts have never judged the wisdom of a tax or second guessed Congress’s ability to collect taxes. Opponents argue this tax is not real because there is no criminal sanction for non-compliance. They say if the Court adopts this view the ability of Congress to do anything will be unlimited which is surely not what the Framers intended.
Day 3 AM Session -- Wednesday March 28 -- 90 minutes of argument
If the Court concludes they have jurisdiction and the case is justiciable (day 1) AND they decide there is no support in the constitution for an individual mandate (day 2) they will then ask, “can the rest of the ACA be saved?”
QUESTION 3: Severability - If the individual mandate is struck down, can it be “severed” from the rest of law or must the entire law fall?
When Congress passes a law they almost always include a provision that says something like, “should any part of this law be found invalid, strip it out and leave everything else intact.” Courts try to honor that direction whenever they can, but sometimes it just is not possible. The question is whether the individual mandate is so central to the ACA or if it is just one component? The Solicitor General is arguing most of law is severable. Everything except the “guaranteed-issue” (health care providers must offer/issue policies to everybody) and “community-rating” (health care providers need to charge the same premiums to all) provisions should be severed. The Attorneys General argue the entire ACA is toothless without the individual mandate and that Congress would not have passed the law without it.
The 11th Circuit decided to sever the individual mandate from the law. Meaning, among several other things, the requirement that insurers allow parents to keep their kids insured until they turn 26 is still in effect. Congress is not stupid, they front load many of the most popular aspects of a bill so the citizenry gets used to them and grows to like a new piece of legislation so when the more controversial provisions kick in years later the populous is more receptive.
Day 3 PM Session -- Wednesday March 28 -- 60 minutes of argument
Finally, the Court looks to see if Congress has passed a law that infringes on States’ rights by giving them no choice but to accept the new regulatory scheme governing Medicaid. This argument has the greatest potential to change the landscape of constitutional law forever. Should the Court rule in favor of the Attorneys General on this issue there is the potential that many different Congressional initiatives will be called into question and presumably invalidated in the near future.
QUESTION 4: Can Congress require States to adopt the new regulatory scheme for Medicaid in exchange for funds to run the program?
The Attorneys General making this argument are saying there is so much money at stake there is NO WAY we can turn it down. Yes we have the right to choose not to participate in this program, but there is no way we would be able to provide for our low income citizens without the funds you provide. It is totally not fair that you, Congress, are changing the rules on us and requiring even more people become eligible for Medicaid. Further, you did not put any provisions in ACA for low income people who live in states that opt out of medicaid (are there any?). Defenders say this is ridiculous. If we offer a lot of money to the states we can not control it? Of course we are free to condition money and states are free to choose to opt out. Just because it will be a politically unpopular decision for states to refuse the money does not mean States are being coerced into accepting the funds. No Judge or circuit court has found this argument convincing. The fact the Supreme Court agreed to hear it was a surprise to many legal scholars.