Supreme court to take health care case

By Margot Sanger-Katz

November 14, 2011

This story has been updated and corrected.

The Supreme Court said on Monday that it would consider several challenges to last year's health care reform law, setting up a major ruling on the Obama administration's signature legislative achievement just months before the 2012 election.

The case will probably be heard in March, making a final decision likely by the end of the Court's term in June. Opponents and supporters of the health care law were equally delighted that the matter may be settled.

In apparent recognition of the complex issues presented by the cases, the Court allotted an unusual five and a half hours for arguments. Usually, cases get an hour of oral arguments.

The justices asked lawyers to answer four legal questions about the law in their briefs, signaling that they will rule on each.

They are:

So far, two Appellate courts have rejected this argument, ruling that the mandate is acceptable. One court has sided with the challengers, saying the mandate should be overturned.

The one court to overturn the mandate, the 11th Circuit Court of Appeals in Atlanta, found that it can be separated from the rest of the law, and it ruled the rest of the law should be preserved.

The justices will have to decide whether the law's penalty for not buying insurance functions enough like a tax that these rules should apply. If they agree with the argument, lawsuits will be barred until after the mandate goes into effect.

The Court had its choice of a combined five cases from three federal Appellate courts for its consideration. The cases it has agreed to hear all come from the 11th Circuit, which ruled in August against the law. It has not decided to hear cases from the 6th Circuit or 4th Circuit and probably will not, since they raise similar legal issues. A fourth case, from the D.C. Circuit Court of Appeals, was decided recently but has not yet reached the high court.

"The Florida case presents every single question that they would want to decide, so once you decide that you would grant in those cases, there's no real reason to grant in the others," said Bradley Joondeph, a constitutional-law professor at Santa Clara University, who has been maintaining a blog on the challenges to the health care law.

The cases it took are NFIB v. Sebelius and Florida v. HHS on severability; HHS v. Florida on the mandate and jurisdiction; and Florida v. HHS on the Medicaid expansion.

HHS v. Florida, Florida v. HHS, and NFIB v. Sebelius were originally the same case. They involved a challenge to the law from 26 states, led by Florida, the National Federation of Independent Business, and two individuals. Because the challengers won on some issues and lost on others in the circuit court, both sides have appealed.

HHS v. Florida is the government's appeal of the 11th Circuit's decision to strike down the individual mandate as unconstitutional. The appeals court did not agree with the challengers on their objection to the Medicaid expansion or their contention that various aspects of the law could not be considered separately. The NFIB also separately appealed the 11th Circuit's decision on severability.

Parties on both sides welcomed the Supreme Court's embrace of the controversial case. The White House issued a statement expressing confidence about the outcome. "We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree," said spokesman Dan Pfeiffer.

The Obama administration surprised many observers by asking the Supreme Court to weigh in on the law.

Health and Human Services Secretary Kathleen Sebelius said she was pleased. "We're very pleased that they have indeed decided to take the case," Sebelius told reporters. "We're confident that the law is constitutional, will be upheld as constitutional."

Republicans who have been howling for repeal of the law were equally pleased with the High Court's decision. "In both public surveys and at the ballot box, Americans have rejected the law's mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same," Senate Minority Leader Mitch McConnell, R-Ky., said in a statement.

Sen. Orrin Hatch, R-Utah, ranking member of the Senate Finance Committee agreed. "The Supreme Court's decision to consider the unconstitutional health law is a big step towards restoring liberty and limits on government under the U.S. constitution," Hatch said.

Republican presidential candidate Rep. Michele Bachmann, R-Minn, called on the administration to give up. "Furthermore, I call on President Obama and Congress to cease enforcement of the remaining provisions of Obamacare immediately until the Supreme Court rules on its constitutionality," she said.

Karen Harned, executive director of the small-business legal center for the NFIB, sounded an equally optimistic note. "Our nation's job-creators depend on a decision being reached before the harmful effects of this new law become irreversible," she said in a statement.

Health insurers, doctors, and the U.S. Chamber of Commerce have been among the many other groups asking the Court not just for a particular ruling but simply to take a case and clear up uncertainties about whether health care reform will proceed.

Correction: The original version of this report inaccurately described the ruling of the 11th Circuit on the question of whether an individual mandate could be separated from the rest of the health care reform law. The court found that it could be severed. The story also misstated the origin of the three cases that the Supreme Court has agreed to consider. All three originated in the 11th Circuit.


By Margot Sanger-Katz

November 14, 2011

http://www.govexec.com/federal-news/2011/11/supreme-court-to-take-health-care-case/35408/