Constitutional Law

It's Official: The Supreme Court Will Hear Challenges to ObamaCare


The Supreme Court announced today that it will hear five and a half hours of oral arguments on the constitutionality of last year's health care overhaul.

Those arguments will likely be held next March, according to SCOTUSblog, and a decision should be released by the end of June.

The Court will hear the case of Health and Human Services v. Florida, et al., in which 26 states joined together to challenge the mandate and other portions of the law. In January, District Court Judge Roger Vinson ruled against the mandate and struck down the entire health care in the process

This is what the Obama administration had asked for, in part to ensure that they're the ones to get to argue the case (if a Republican wins in 2012, a GOP controlled White House might be less enthusiastic about defending the merits of the mandate).

There are political implications to the timeline as well, as the Court's announcement virtually assures that the health care law and its mandate to purchase health insurance will be front-page news just as the presidential election is kicking into high gear. 

Update: The Washington Examiner's Philip Klein argues that the decision to take the multistate challenge is good news for critics of the mandate:

This is great news for opponents of Obamacare, because the case, which comes out of the 11th Circuit of Appeals, is the best briefed and best argued of all of the various legal challenges to the health care law. It's the case that opponents of the law won at both the district court and appellate level.  

Former solicitor general Paul Clement and Michael Carvin of Jones Day (who also has lots of experience before the Supreme Court) did a masterful job arguing the case before the 11th circuit. Georgetown Law Professor and constitutional law whiz Randy Barnett is also an advisor to the NFIB on the suit.

SCOTUSblog, noting that the five and half hours of arguments constitute a modern record record, explains how that time will be broken up:

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 and three of its members and by Liberty University and two of its employees.

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  1. (1) I’ve never heard of 5 1/2 hours of oral argument. I don’t recall how much oral argument is usually allowed, but I want to say its more like an hour.

    (2) By taking up the 11th Circuit case (where the appeals court struck down part of the law), they are setting up a potential disaster for SCOTUS legitimacy.

    A 4-4 decision would mean the lower court decision stands, and the mandate is struck down. That could well be the outcome if Kagan were to do the decent thing and recuse herself (which she has said she won’t do).

    A 5-4 decision upholding the law (with Kagan, naturally, in the majority and providing the fifth vote) would mean that the mandate was upheld via a breach of judicial ethics. Not good, SCOTUS. And, most especially, not good for SCOTUS.

    1. According to SCOTUSblog, the 5 and 1/2 hours time alloted for argument sets a modern record.…..ore-131850

    2. I think that the decision to hear the 11th Circuit case means that Paul Clement will argue on behalf of the respondents (states). This puts the issue in the hands of our side’s best advocate, which is a good thing.

    3. if Kagan were to do the decent thing


    4. According to Jamie Dupree on Boortz, it’s a modern era record, and only 3 cases ever have had as long oral arguments.

      Don’t know if that’s a good thing as it kinda muddles up the central issue which is should the government be allowed to compel you to purchase a product.

    5. I’ve never heard of 5 1/2 hours of oral argument. I don’t recall how much oral argument is usually allowed, but I want to say its more like an hour.

      IANAL, so I would like to know why there is an arbitrary time limit at all.

      At the very least the time limit should be proportional to the length of the legislation in question. Otherwise a 10-page law gets the same hearing as a 70,000 page law.

  2. I’ve never heard of 5 1/2 hours of oral argument.

    That’s extra. And half up front.

    1. I’ve heard of 5 1/2 hours of anal argument.
      Hell, I topped that just yesterday!

      +1 for me?

        1. Are you two lovers or something?

          1. Affirmative. Thanks!

            1. You can’t win, Darth. Episiarch must always have the last word. He’s cleaning up the blog, dontcha know.

  3. Say a prayer for Justice Kennedy. He will likely be the one who decides the future of our health care system.

    1. It’s not just our healthcare system that’s at risk.

  4. This is an indication they are going to uphold the law. SCOTUS is very sensitive to politics and will avoid overturning near an election.

    1. Except when they’re deciding the election themselves.

    2. Quit stealing my handle!

    3. Also, considering the 88 precinct defeat of Obamacare in Ohio, I don’t think that the court will hesitate to overturn this. Popular opinion holds a lot of sway over the Court in such controversial issues. Hell, they upheld Jim Crow laws just because of their popularity.

  5. They’re getting 5 1/2 hours of oral?

    1. I call Sotomayor’s snatch!

      1. Call it “Grover.” I hear the resemblance is downright uncanny.

      2. On Christmas Day, I eat Chinese!

      3. She’s always eating them weird vegetables and shit.

  6. I wonder if Steve Guttenberg will emerge from the podium.

  7. I’d love to have the SC strike down the mandate so come next November you don’t have to vote for the Republican presidential candidate.

    1. 0bama knew the law is going to be struck down in entirety. This is why he put in the individual mandate that is blatantly Unconstitutional. He appeased his voting block who are mommas boys and girls, but left a poison pill so the disaster of America would not come to fruition proving he and the democrats are purposefully trying to destroy America and give it to Russia.

  8. Don’t worry, if this law is upheld I will not, under any circumstances, take advantage of the unlimited federal power I have been given.

    1. I see the joke here, but feel that I need to comment that 1 hour of oral argument will be heard on the implication of Obamacare and the 10th amendment. Could reverse the tide of unlimited federal powers. I feel this is probably the second most important part of the hearing, right behind the individual mandate (which they’ll reserve judgement on until it’s actually implemented).

  9. To strike down Obamacare, SCOTUS would essentially have to overturn Wickard. This Court will not do that. Instead, Obamacare will sort of be upheld, but there will be at least 6 different opinions coming out of the ruling. The Commerce Clause will make even less sense.

    1. Bingo, JP.

      I’ve given this a lot of thought, and the post-Wickard cases pretty much pave the way.

      Sorry, but the “activity/inactivity” distinction just doesn’t hold up under the case law, IMO. Literally thousands of pages of federal regulation is devoted to mandates to buy goods and services, after all.

      The basis for those mandates is that the people subject to them are engaged in some economic activity that has an aggregate indirect effect on interstate commerce. Well, that’s everybody.

      It gets even worse when you look at Wickard, and realize that the Court there said that being self-sufficient (that is growing your own wheat, paying for your own health care, whatever) was subject to the Commerce Clause.

      To strike the mandate, you have to gut the entire line of post-Wickard cases.

      Now, its possible the Court will do the intellectually dishonest thing and hang its hat on activity/inactivity, but that will unleash a tidal wave of new cases attacking economic regulation across the board.

      1. Literally thousands of pages of federal regulation is devoted to mandates to buy goods and services, after all.

        But those are avoidable mandates. If you don’t want to install non-slip floor surfaces, don’t open a restaurant. If you don’t want to pay for double-walled gas tanks, don’t run a gas station.

        This is fundamentally different because it mandates an activity based on nothing more than one’s choice to continue existing.

        1. Wickard and its progeny are not predicated on any notion of avoidability.

          1. It also didn’t deal with a case where it was unavoidable to be required to partake in Congressionally-mandated commerce.

        2. What Female-bodied said.

          Wickard and its spawn are based on the effect on interstate commerce. As long as what you are doing has an effect on interstate commerce, even if all you are doing is being self-sufficient, then Congress can lay a mandate on you.

          And, yes, just existing has an affect on interstate commerce.

          1. Makes you wonder if the founders had been asked what avenue of their new constitution would be used for tyranny, how many would have guessed the commerce clause.

            1. Quite a few. The Federalist Papers have some discussion about it. The Founders basically thought nobody could possibly read “interstate commerce” to include anything that was (a) intrastate or (b) not commerce.

              So naive.

          2. As long as what you are doing has an effect on interstate commerce


            That’s the point.

      2. but that will unleash a tidal wave of new cases attacking economic regulation across the board.

        That sounds like lots of billing for lawyers. Government is nothing if not a jobs program for lawyers.

      3. They really should just overturn Wickard. Its bad law.

      4. Wrong! This mandate says that just because you were born, you must BUY health insurance.

        No here, when, or how have an American been FORCED to purchase one single thing because they are alive and exist since the founding of the nation in 1776.

    2. To strike down Obamacare, SCOTUS would essentially have to overturn Wickard.

      I disagree. Wickard can be distinguished. In Wickard, Congress was not requiring every single person in the U.S. to have insurance and to buy some if they didn’t have coverage some other way.

      And I do believe there is substance to the activity/inactivity argument. Don’t forget, the Commerce Clause empowers Congress to regulate “commerce among the several states.”

      The predicate is commerce. In Wickard, there was activity that could be considered commerce occurring, which Congress can regulate.

      Here, Congress is requiring commerce to occur – Congress is creating the commerce so that it can then regulate it.

      Anyhow, I do believe they can rule against O’care without necessarily overruling Wickard.

      They could do the old “confine it to its facts” routine, which is a nice way of not overruling it, while rendering it much less meaningful.

      1. In Wickard, there was activity that could be considered commerce occurring.

        No, there wasn’t. There was a guy growing wheat which would be entirely consumed on his own farm. That is not commerce by any definition. It is the opposite of commerce; it is someone choosing to be self-sufficient rather than engage in commerce.

        Wickard is extraordinary for the blatant disregard of the Constitutional language at issue. Consider these quotes:

        “But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

        IOW, even though its not commerce, and even though its not interstate, Congress can still regulate it.

        “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”

        So, regulations which “stimulate” commerce (such as, by requiring people to engage in it) are just fine.

        1. There was a guy growing wheat

          which is an activity.

      2. Here, Congress is requiring commerce to occur

        As it has done via the thousands of pages of regulations which require people to buy goods and services. This is not new; it is perfectly ordinary under Wickard.

        Consider: You run a widget factory, and don’t have any safety posters or equipment around. You are “inactive” in the safety marketplace. OSHA nonetheless requires you to buy tons of equipment and posters that you otherwise would not buy.

        How is that different than ObamaCare requiring you to buy health insurance you otherwise would not buy?

        1. Except you can avoid doing as the govt says by not running a widget factory. So it is really your ACTIVITY of running the widget factory that’s being regulated.

      3. They could do the old “confine it to its facts” routine, which is a nice way of not overruling it, while rendering it much less meaningful.

        Oh, I can’t imagine they would formally overrule Wickard.

        If the overturn, it will probably be based on some activity/inactivity argument. That, however, is inherently unstable and inconsistent with what Washington actually does, though, and will cause lots and lots of trouble in the form of lawsuits and ever more convoluted SCOTUS doctrine on what counts as an “activity” in a given market that justifies a mandate that you cease your “inactivity” in another market. Its insanity, but that’s the best case scenario.

      4. Correct! No where, when, or how has any American been required to purchase anything just because they exist. Never ever from the Founding of the nation in 1776…

  10. I know I should be excited, but I have this sense of foreboding. The kind fo foreboding you get before you walk into a room where you know the possibility of anal rapage could occur.

    1. It’s not rape if you’re willing; which we’ve proven by repeatedly electing rapists.


  11. struck down the entire health care in the process

    Sorry to be so pedantic, and I’m sure this is just a typo, but can you correct this to say “the entire health care law”? It’s a pet peeve of mine when people equate Obamacare with health care.

  12. The lawlessness of the Supremes cuts both ways. No matter what our kings choose, the rationale will be utterly lawless. I think it will come down to polling and since this turd has had sustainable negatives since inception, they’ll kill it. Right answer, wrong way.

  13. So, I’m guessing the picture of the door is from some kind of gay dating service?

  14. A few things:

    1. With Frank Miller reference a few posts up the page, I am reminded of his movie The 300, and the priests – seems kinda similar to the supreme court.

    2. Given the horrible work of the Supreme Court in interpreting the constitution in years gone by, why should we expect anything good to come out of this?

    3. The horrible work of the Supreme Court is not a recent arrival – they’ve been making bad decisions for a good, long time.

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