Outside the Beltway

Supreme Court To Take First Look At Health Care Law Challenges

Doug Mataconis · Wednesday, October 26, 2011 · 4 comments

Lyle Denniston reports that the Supreme Court is set to take its first look at the challenges to the Affordable Care Act in a private conference on November 10th:

The Supreme Court will take its first look at the challenges to the new federal health care law at its Conference on Thursday, November 10.  Five of the six pending petitions (the sixth is not ready yet) were distributed to the Justices’ chambers on Wednesday, for consideration at that private session.  Although a grant of review is not assured, that is highly likely, since all sides agree that the Court should take on the controversy, and the constitutionality of a key provision of the new law has been decided differently by federal appeals courts.

The first decision the Court will face in this historic dispute is whether to grant any of the petitions  or any of the issues.   The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.

Four of the petitions were filed by challengers, and together they raise all of the key issues the Justices may want to consider as they examine the massive Affordable Care Act passed by Congress at the urging of President Obama.  The fifth petition is the federal government’s. defending the constitutionality of the insurance-purchase mandate that is crucial to the overall law’s functioning.  The government also is urging the Court to confine its review to only a few vital questions.

The sixth pending petition involves an attempt by the state of Virginia to get back into the constitutional fray; the Fourth Circuit Court ruled that Virginia did not have a legal right to bring its court challenge, since it could not show that the state would suffer any harm from the new insurance mandate.   That petition will be ready only when the federal government files a response, which currently is due on Nov. 3.  The government has not hurried its filing of a response to Virginia’s filing, as it did in most of the others.

It will be up to the Justices themselves to decide (a) which petitions, if not all of the five, should be reviewed, (b) which issues it is ready to decide, (c) how to line up the lawyers on each side of those issues, and (d) how much time to allow for oral argument.   Because the five are now ready for the Court’s consideration, a grant of review soon would assure that they could be heard and decided during the current Term of the Court, which is expected to run until near the end of June.  An oral argument in late March appears probable.

Here are the five petitions that the Justices will consider Nov. 10, the issues each seeks to raise, the lower court involved, and the petitioners:

It may be a week, or more, before we find out what the Court has decided to do. Oral argument in March 2012, of course, would mean that a decision gets handed down sometime at the end of the current term in June 2012. Information about all the cases to be considered can be found at the links.