The Supreme Court will review four issues of the new law:
- Whether the individual mandate is constitutional?
- Whether other provisions can be preserved if the mandate is voided?
- Whether any ruling is premature until 2015?
- Whether Congress can require states to expand Medicaid programs in 2014?
The Court will hold 2 hours of argument on the constitutionality of the mandate to insist that all Americans obtain health insurance by 2014. Ninety minutes will be allocated for the question of whether some or all of the overall law must fail if the mandate is struck down. One hour will be allowed on the question of whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate and 1 hour will be set aside to argue the constitutionality of the expansion of the Medicaid program for the poor and disabled.
The issues the Court has agreed to review were chosen from appeals by the federal government, arguments raised by 26 states and a business trade group. The Supreme Court chose not to review questions involving new health care coverage requirements for public and private employers or issues raised by the Thomas More Law Center or Liberty University.
Ilya Shapiro of the Cato Institute in Washington, D.C. said the Health Care reform case was the most significant case since Roe v. Wade; he said the litigation over the mandate might be even more important than Roe.
The court’s decision to allow 5 ½ hours of argument time is unprecedented and extraordinary, said Adam Winkler of the UCLA Law School. The allotment of five and one-half hours for oral argument appears to be a modern record, according to Lyle Denniston of the SCOTUSblog. Denniston states that 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.
Adam Liptak of the New York Times reported on November 18, 2011 that the Supreme Court had named 2 lawyers to act as friends of the court and submit briefs and argue points in the health care law case before the U.S. Supreme Court this March.
Bartow H. Farr III was chosen to argue that the individual mandate-the provisions of the Patient Protection and Affordable Care Act that requires almost everyone to buy health insurance or face a tax penalty could be separated from the Act and those parts of the Act would still be enforceable without the mandate. Farr will have 90 minutes to present his arguments for severability.
Robert A. Long was chosen to argue that a federal law called the Anti-Injunction Act makes challenges to the mandate premature until 2015. The U.S. Court for the Fourth Circuit, in Richmond, Virginia, accepted that argument in September, as did a dissenting Judge on the U.S. Court of Appeals for the District of Columbia Circuit. Long will have an hour to argue that challenges to the mandate would be premature until 2015.
The Court has scheduled arguments on the Health Care Law to be heard in March of 2012, and a ruling is expected by June 2012.