Supreme Court Sends Signals With Questioning

Mar 28

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3/28/2012 10:38 AM  RssIcon

Today marks the 3rd day of oral arguments before the Supreme Court in the health care reform case – and what a week it’s been!

On Monday, the Court heard arguments on whether the Anti-Injunction Act prevents the Court from considering the individual mandate provision until its actual effective date in 2014.    The 145-year-old Act prevents federal courts from deciding cases in which taxpayers are trying to prevent the government from collecting taxes.  The tax has to be actually due, and then the courts can hear the case. 

Eight of the justices fired questions at the attorneys during the oral argument (Justice Thomas continued his six year trend of silence during oral arguments).   Although it's impossible to predict the outcome based on questions, the line of questioning appears to indicate that the Court is leaning towards ruling that the Anti-Injunction Act will not apply – which means they can decide the larger issue of whether the individual mandate is constitutional now.   

Tuesday took us to the heart of health care reform – the individual mandate.  The individual mandate requires that most people obtain health insurance or face a penalty.  It appears that the conservative justices (Thomas (silent, but prior writings indicate he is not in favor of the mandate), Scalia, and Alito) believe that the mandate is unconstitutional, while most of the liberal justices believe the mandate is constitutional (Breyer, Ginsburg, Sotomayor, and Kagan).   Justice Kennedy, who often casts the deciding vote, seemed to favor the administration’s position that the mandate is constitutional, but indicated that the administration faces a very heavy burden here.   Chief Justice Roberts, normally one of the conservative Justices, indicated that his vote could be in question as well. 

Overall, signals indicate that the individual mandate will be upheld only if the key Justices believe that they are not giving Congress broad new powers over our lives. 

Today, the Justices are considering whether the individual mandate – if found to be unconstitutional – can be severed from the rest of the health care reform law and whether the federal government has coerced states by ordering the expansion of Medicaid. 

We can expect a decision by the end of June.  

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