By Sam Baker - 11/15/11 01:26 AM EST
The prospect of a June Supreme Court decision on the new healthcare law, which observers are already calling the biggest case of the century, ensures a raging debate over President Obama’s signature legislative achievement through Election Day.
In granting an appeal on a lawsuit filed by 26 states and the National Federation of Independent Business (NFIB), the high court set up the lengthiest oral arguments for any challenge in decades, formally clearing the way for a decision at the height of the 2012 campaign season.
The justices said they would hear every part of the states’ lawsuit, including issues that many experts didn’t think would make the cut.
“I think the court hears that this is the biggest case of the century,” said Randy Barnett, a Georgetown University law professor who represents NFIB. “They share that view.”
The White House — which pushed for a quick hearing rather than trying to delay the proceedings until after the 2012 election — said it was “pleased” with the Supreme Court’s decision to take the case.
“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” White House communications director Dan Pfeiffer said in a statement.
Republicans also celebrated the court’s decision, and the National Republican Senatorial Committee wasted no time injecting the news into competitive 2012 races. The NRSC attacked Sen. Claire McCaskillClaire McCaskillThe Republicans' hypocrisy on minimum wage Watchdog faults Energy Department over whistleblower retaliation Wagner passes on NRCC bid, backs Stivers MORE (Mo.), and other vulnerable Democrats, for supporting the healthcare overhaul.
“The Supreme Court’s decision to weigh in on ObamaCare is yet another reminder to Missourians that Sen. McCaskill cast the 60th and deciding vote to make this unconstitutional mandate the law of the land,” the NRSC said in a release.
The central issue before the Supreme Court is the healthcare law’s individual mandate, which requires almost all Americans to buy insurance. The states and NFIB say it’s an unconstitutional use of Congress’s authority to regulate interstate commerce. If the Supreme Court upholds the mandate, they argue, Congress will be able to make citizens buy just about anything.
“This defines whether there are limited and enumerated powers of Congress,” Barnett said.
The Obama administration argues that the mandate does not require people to participate in commerce, but rather regulates how and whether they pay for the healthcare services that everyone will eventually need. But the Justice Department has struggled against the claim that upholding the insurance mandate would be a slippery slope to other requirements.
“That’s been the main problem that the Justice Department has had, and I think it’s difficult to answer it crisply. They’ve proven that, because they haven’t been able to,” said Simon Lazarus, policy counsel at the National Senior Citizens Law Center.
Still, Lazarus and other supporters of the healthcare law said they’re confident in the government’s position, especially given its track record in lower courts. Two federal appeals courts have upheld the mandate, one has ruled it unconstitutional and one declined to reach a decision on the constitutional issue.
The biggest surprise in Monday’s announcement was the decision to hear arguments about the healthcare law’s Medicaid expansion. The states say it’s unconstitutional, but no lower court has agreed with that position. The Supreme Court rarely takes up issues that have not divided lower courts.
Tim Jost, a Washington and Lee University law professor, said he was “disappointed” to see the Medicaid question granted. Jost said a ruling in the states’ favor on the Medicaid question could have even bigger implications than striking the mandate.
“I think the grant strongly suggests that they have interest in the issue,” said Greg Katsas, who represents NFIB. “I don’t think you can go so far as to say it signals that the states are likely to win, but it does signal they’re viewing that as a serious question.”
In addition to the constitutional questions surrounding the mandate and the Medicaid expansion, the court will consider two procedural issues.
The justices will hear arguments on severability — whether other parts of the law must fall if the mandate is ruled unconstitutional. And they’ll also debate whether they can reach a decision at all. One lower court said the constitutional questions about the mandate will have to wait until 2014 because of a separate federal law that says a tax must take effect before citizens can try to overturn it in the courts. The Supreme Court set aside an hour for arguments on that issue.
The court will likely have to appoint a third party to argue the tax issue, because the states and the Justice Department agree that it shouldn’t bar the states from ruling on the mandate. Legal experts said there was simply no way for the court to avoid the tax law, even though the states and the Justice Department agree that it shouldn’t bar the court from ruling on the mandate.
Justices Clarence Thomas and Elena Kagan did not recuse themselves from the process, despite activist groups’ calls for them to do so.
Conservative groups had called for Kagan to sit out the healthcare case because she was solicitor general when the solicitor general’s office began planning its legal defense of the healthcare law and its individual mandate. Liberal groups said Thomas should not take part in the case because his wife has profited from speeches and other work explicitly calling for Congress to repeal the law.
But neither was absent from Monday’s order. The court’s practice is to list any recusals at this stage of the process, but it does not explicitly note or explain justices’ decisions to participate in a particular case.
Thomas and Kagan aren’t expected to change their minds.
“Presumably, they made whatever judgments they were going to make,” Katsas said.