Monday, November 14, 2011
The Supreme Court today granted review in three appeals of lower court rulings on the constitutionality of the Affordable Care Act. The Court allocated five-and-a-half hours for oral argument, as follows:
- 90 minutes on the severability of the individual mandate, the sole question presented in 11-393, National Federal of Independent Business, et al. v. Sebelius, and the third question presented in 11-400, Florida, et al. v. Department of Health and Human Services (the states' appeal of the Eleventh Circuit case).
- 2 hours on congressional authority to enact the individual coverage provision, the first question in 11-398, Department of Health and Human Services v. Florida, et al. (the government's appeal of the Eleventh Circuit case).
- 1 hour on whether challenges to the ACA are barred by the Anti-Injunction Act, in 11-398. The Court directed the parties to brief and argue this question. (The government urged the Court to take up this issue in its cert. petition, in order to resolve the split between the Sixth and Fourth Circuits. Because the government says that the AIA does not apply--the same position taken by the challenging states--it also suggested that the Court appoint counsel to argue that issue.
- 1 hour on whether Medicaid expansion spills from encouragement to coercion under South Dakota v. Dole and thus violates "basic principles of federalism," the first question in 11-400, Florida, et al. v. Department of Health and Human Services.
The Court put all the briefs on a single page, here.
Congressional authority, the second bullet above, has received the most attention in public debates and most lower court cases. But the other issues--save for the AIA issue--are nearly as important.
In particular: The Court's consideration of Medicaid expansion could be quite significant. The states framed this issue as a direct challenge to South Dakota v. Dole under "basic principles of federalism." This opens all kinds of doors for the Court to reexamine federal conditioned spending, the Tenth Amendment, and, more generally, federalism. The Roberts Court has signalled its openness to consider these kinds of claims (as in last Term's decision in Bond v. United States, holding that an individual could bring a Tenth Amendment and federalism claim against a federal criminal law), but it has also signalled that the substance hasn't much changed (as in U.S. v. Comstock, flatly rejecting a Tenth Amendment and federalism argument that Congress intruded too far into an area reserved for the states by authorizing the continued detention of "sexually dangerous" federal prisoners beyond their release date). Given the reliance interests on South Dakota v. Dole--the federal government operates many mammoth spending programs that come wtih strings--it's hard to imagine that the Court would overturn that case. Still, the ACA challenge will reopen these questions and give the Roberts Court an opportunity to put its own stamp on federalism, even if that stamp is working within the Dole framework.