SCOTUS Grants Review of ObamaCare

November 14th, 2011

By Dan Miller

Supreme Court Associate Justice Anthony KennedyBy an order issued today, the Supreme Court granted several petitions for certiorari in cases challenging the constitutionality of the insurance mandate and other aspects of ObamaCare. Here is the only article I have found that provides a useful analysis of what the Court actually did. Among other things, it says

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours — probably in March — for oral argument. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it. It is unclear, at this point, whether all of the cases will be heard on a single day.

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.

The length of time allotted for oral argument, two hours on whether the insurance mandate exceeds the authority of the Congress under the Commerce Clause and ninety minutes on severability if the insurance mandate is stricken, suggests the importance and possibly the difficulty of resolving those issues. As the linked article observes, the

allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)

As I noted here last month, it was probably a tactical mistake for the Obama Administration to file a petition for certiorari rather than seek reconsideration of an appellate court decision that ruled the insurance mandate unconstitutional. With a Supreme Court decision probable well before November of 2012, the matter is quite likely to become a very contentious issue during the presidential campaign. As it should be.

(This article was first published at The PJ Tatler.)


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2 Responses to “SCOTUS Grants Review of ObamaCare”



  1. Tom Carter |

    It will be fascinating to see how the Court goes on these issues. However it turns out, the result will be a landmark case (unless they decide that the Anti-Injunction Act applies and make no decisions at all). It seems obvious to me that the individual mandate is unconstitutional; I don’t see how the Commerce Clause can possibly be stretched that far. But you never know what the Supremes might do — never forget Wickard v. Filburn!

    I’m not sure that the Court’s decision will be a major issue in the election. ObamaCare is going to be a big deal no matter what the decisions are. I suppose it could add fuel to the fire of one argument or another.


  2. Tom Carter |

    Politico has a good article that looks at the potential impact of the SCOTUS ObamaCare decision(s) on the election. It still adds up to “who knows?” but the analysis is interesting. One interesting point is that Obama is confident that the law will be upheld and was willing to gamble. We’ll see.


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