The Supreme Court kicks off its new term Monday, and perhaps its biggest case in what is shaping up to be a landmark-filled term will concern the constitutionality of President Obama's healthcare overhaul law.
Challenges to its constitutionality have been filtering up the through judicial system, but the August decision from the 11th Circuit Court of Appeals invalidating the act's individual mandate requiring all citizens to have health insurance is the one experts say has the best chance to be the vehicle for a Supreme Court ruling. "Everybody has viewed the 11th Circuit case as the main event, as the one with all the states, the most developed arguments," says Tom Goldstein, the publisher of SCOTUSblog who has argued 22 cases before the high court. "It's been uniformly recognized as the more significant case."
Assuming the court does use the 11th Circuit case to pass judgment on the law's constitutionality, here's how court watchers say events are likely to unfold:
Appealing up. Last Wednesday, all three parties in the case—the federal government, a group of 26 states, and nongovernmental petitioners that include the National Federation of Independent Business—filed petitions asking the Supreme Court to take up the case..
The government stands by the constitutionality of the healthcare law, saying Congress does have the power to enforce a minimum insurance coverage requirement. The government's petition also asks the court to consider an Anti-Injunction Act question, raised in a Fourth Circuit Court decision to throw out the case, to determine whether or not the case is valid. The Anti-Injunction Act prohibits law suits against taxes that are not yet in place, but most now agree that the penalty attached to the individual mandate is not a tax, Despite the fact that the government does not think the Anti-Injunction Act applies, if the Supreme Court takes this way out of deciding the merits of the case, it will be at least a temporary win for the Obama administration since implementation of the law could then move forward.
But experts think it is unlikely the Supreme Court would take that route since it would put off a final decision on the law's constitutionality until after 2014, when the healthcare law is fully in place. "Both sides seem to agree on the Anti-Injunction Act," says University of Richmond constitutional law professor Carl Tobias. Everybody is "saying it doesn't apply, because of course everybody wants to get to the merits."
The National Federation of Independent Business, together with two individuals—Kaj Ahlburg of Washington, a wealthy former investment banker who claims he can afford to pay for healthcare out of pocket, and Mary Brown, a Florida small-business owner who claims she needs the money she would have to spend on insurance to run her business—are asking the Supreme Court to invalidate the entire law.
The group of 26 states is taking a slightly different tack, arguing Congress overstepped its bounds not just with the mandate, but also with the forced Medicaid expansion and the fact that state employees count in the individual mandate, both of which, the appeal argues, threaten state sovereignty. "They have appealed the decision on whether or not Congress violated basic federalism principles by coercing the states into accepting Obamacare requirements by threatening to withhold all federal funding under Medicaid," explains Hans von Spakovsky, senior legal fellow at the right-leaning Heritage Foundation, who says these aspects of the case are important in setting boundaries for Congress's power. "Let's say the Supreme Court agreed the individual mandate is unconstitutional. Congress could still accomplish the exact same thing by re-passing a provision that forces the states to impose that [insurance] requirement on their people" by threatening to withhold Medicaid funding.
In the court's court. Before the Supreme Court decides whether or not to take up the case, each of the parties must respond to the opposition's appeals. The government will have to respond to the independent business group's appeal by October 28, the same date both of the law's challengers must respond to the government's appeal. And the government's due date for responding to the states' appeal is October 31. After the responses are in, the parties may also file replies to the response briefs.
After reviewing all relevant petitions and response briefs, the Supreme Court will announce whether or not it will take the case. Experts expect this announcement will probably come late in November, unless the court decides to wait for the appeal petition process in the Fourth Circuit case to play out. A few months of briefings—another round of written back-and-forth volleys between the parties and other relevant groups—would follow if they take the 11th Circuit case.
As the presidential contest heats up in early spring, the question of the healthcare law's constitutionality will likely be front and center as the Supreme Court hears oral arguments. Then, likely in June, smack in the middle of campaign politics, the Supreme Court will hand down its decision, delivering a political win either to President Obama or his Republican opponent.
Once the political aftermath subsides, however, the court's ruling will, at long last, provide some measure of certainty for agencies and states wondering how to move forward and implement the law—or not.