If you are anxiously awaiting Monday’s kickoff of what many are calling the “Super Bowl of Constitutional Law”—the Supreme Court's tackling of Obamacare—you may be looking for a layman’s explanation of this week’s events along with the possible outcomes.
Consider this your pre-game preview.
Monday, March 26
First up, the Court will take on the issue of whether or not they should even be hearing a constitutional challenge to the individual mandate provision of Obamacare at this time. If you are following along with the audio transcripts (
they will be available on Friday same day audio will be available each day), you may hear some discussion as to whether or not the entire question of the mandate is ‘ripe’ for review—meaning whether the case has been brought before the court prematurely.
At issue is a federal law, entitled the “Anti-Injunction Act”, which prohibits an individual or state from challenging a federal tax before anyone has actually had to write a check to pay that tax.
If the court were to decide that this law is applicable to the matters at hand, then the insurance mandate created in Obamacare—which will require those who fail to purchase health insurance to pay a penalty—would not be subject to a challenge until someone actually is required to pay the penalty sometime in the year 2015 (the mandate begins in 2014.)
At the outset of the litigation, the federal government (defending Obamacare) was supportive of the argument that the Anti-Injunction Act should apply as such a finding would delay a court ruling until 2015, at the earliest, thus giving the law some additional time to take effect and garner some public support.
However, after the first few Court of Appeals decisions on the Obamacare challenges were handed down, the federal government decided that they might as well go for a final ruling from the Supreme Court on all issues rather than waiting for another day. Accordingly, the government backed off its support for applying the Anti-Injunction Act—leaving nobody to challenge it as those who are seeking to have the ACA declared unconstitutional certainly were not going to support a delay.
Still, SCOTUS wishes to consider the issue. To do so, they appointed an attorney —not otherwise involved with the challengers or the government—to argue before them in support of applying the Anti-Injunction Act. This will be the topic for Monday morning and what is considered a ‘threshold argument.’
If the Court were to conclude that the Anti-Injunction Act applies in this situation, this would preclude SCOTUS from even considering the remaining issues involving the mandate because such a consideration and decision would be premature.
If the Court rules that the Anti-Injunction Act does not bar a review of the issues, then they will go forward with the consideration of all issues.
So there is no confusion, note that the Court will not reach a decision on this question immediately. Thus, the arguments on all issues before the Court will go forward this week, even if it should turn out that there will be no decision on the mandate— or severability of the same— when the Court eventually hands down its decision at the end of June.
Tuesday, March 27
The Court will dedicate two hours to arguments over whether or not Congress exceeded its constitutional authority by mandating that most Americans be required to purchase health insurance, whether they want to or not. This is, of course, the 'main event'.
We all have a pretty good idea as to the possibilities available to the Court.
If SCOTUS upholds the constitutionality of this provision, then there will be no need for them to reach a determination on whether or not the third issue—severability—is possible. Indeed, if the Court upholds the constitutionality of the mandate, Obamacare will emerge essentially unscathed, with the possible exception of issue four which has to do with the constitutionality of the expanded Medicaid provisions contained in Obamacare (more on that in a moment.)
If the Court strikes down the mandates as unconstitutional, they then move on to issue three—can the law survive, in whole or in part, without the mandate provision?
Wednesday, March 28
This will be a busy day for the lawyers arguing before the Court as the two remaining issues will be heard over the course of the same day. For those who may not know, this is an extraordinary circumstance considering that most cases get about one hour of the Supreme Court’s time – a half hour for each side. Not only will these lawyers face multiple arguments on this day—they will do so after having appeared before the Court less than 24 hours earlier.
In the morning, the Court will hear arguments on whether the remainder of the Affordable Care Act can survive, in whole or in part, if they decide that the mandate is unconstitutional. As noted above, were the Supremes to determine that the mandate passes constitutional muster, this next issue will be moot—no need for the Court to rule on whether or not the mandate can be severed if the mandate is going to survive. However, should the Court rule that the mandate is a non-starter, they will then have to determine whether Obamacare can still operate in the way Congress intended without the inclusion of the individual mandate.
Put another way, if the Court determines that the mandate provisions were, in the collective mind of Congress, so critical to the law that the law just ain’t the law without it, then all of Obamacare would have to go out the window with the mandate and it would be up to Congress to replace it—if they wish—with something that holds up to a constitutional test.
Alternatively, the Court could rule that the law can go forward and be enforced without the mandate or, as a third option, the Court could decide to strike down certain other provisions ‘tied’ to the mandate or items that fail without the mandate while leaving remaining parts intact.
On Wednesday afternoon, the Court addresses the fourth issue—the challenge to the federal government’s ability to refuse to fund state Medicaid programs if a State fail to comply with the expansion of the program as required by Obamacare.
For me, this is one of the most interesting aspects of the challenge to the healthcare reform law and one that has received very little attention.
The way Medicaid is structured, the federal government contributes roughly one-half of the budget that funds each state’s Medicaid program with the state responsible to pay for the rest. To get the federal money, states are required to follow certain ‘guidelines’ provided by the federal government or risk losing the money the federal government provides.
Many of the states challenging the law do not appreciate the federal government being able to pull all that money, even if states choose not to comply with the expansion of Medicaid required by Obamacare. For this reason, they are challenging the government on the principles of Federalism which, simply put, requires the federal government to keep its nose out of the state’s business. Of course, these states, who wish the Court to tell the government to stay out of their business, don't want to lose all the money they receive from the federal government to operate their healthcare safety-net programs.
If SCOTUS were to strike down the mandate and further rule that the entire law fails as a result of the mandate being so central that the rest of the law cannot survive without it, the Court will not need to address this Medicaid issue.
However, if the Supremes either uphold the mandate—or strike it down but leave the remainder of the law intact—they will get to this issue and it could be the real ‘sleeper’ in the entire event.
There you have it.
Kick off time is 10:00 am Monday morning and if American history is your thing, strap yourself in and get ready for an interesting ride.
As Supreme Court cases go, this one promises to be one of the most important in the nation’s history, unless the Court spoils the party and punts the whole thing until 2015 (see issue one discussed above).
I'm betting that's not going to happen. The game is on.
UPDATE: For those who wish to hear the oral arguments, same day audio will be available at www. supremecourt.gov, most likely at around 2 p.m. each day for the morning sessions and 4 p.m. for Wednesday's afternoon session.
contact Rick at firstname.lastname@example.org