Supreme Court To Hear Appeal On Constitutionality Of ObamaCare

The Supreme Court will decide on the Constitutionality of the President's health care law by June 2012.

The Supreme Court announced today that it will in fact rule on the Constitutionality of the PPACA during its current term, setting down an argument schedule that is likely to stand as one of the longest in the history of the Court:

WASHINGTON — The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.

The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a roadmap toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.

Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

Even the Obama administration, while arguing that the mandate is perfectly constitutional, has said that it is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions.

The 11th Circuit ruled for the administration on another point, rejecting a challenge to the law’s expansion of the Medicaid program. The Supreme Court also agreed to hear an appeal from that ruling.

The 26 states, represented by Paul D. Clement, a former United States solicitor general, had argued that Congress had exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in Medicaid.

The problem, Mr. Clement wrote, was that “Congress did not tie its new conditions only to those additional federal funds made newly available under” the Affordable Care Act. “It instead made the new terms a condition of continued participation in Medicaid, thereby threatening each State with the loss of all federal Medicaid funds — on average, more than a billion dollars per year — unless it adopts the act’s substantial expansions of state obligations.”

On Monday, the justices agreed to consider that question

The Supreme Court will also hear argument on an issue that could delay any ruling on the merits of the laws Constitutionality for several years. As I noted back in September, the 4th Circuit Court of Appeals in Richmond threw two lawsuits over the law out on the ground that they were barred by the Anti-Injunction Act, a law which prohibits taxpayers from challenging a tax in Federal Court until after that tax has actually been assessed and paid. This isn’t an argument that any of the other Courts that heard the law had accepted, and even the Federal Government didn’t make that argument in their briefs in any of the lawsuits. Nonetheless, if the Court accepted the Fourth Circuit’s reasoning, it would result in any decision on the merits being delayed for years.

The most striking thing about the Court’s decision today is perhaps the amount of time that the Court will be devoting to this case. as Lyle Denniston explains:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours — probably in March — for oral argument.  The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.  It is unclear, at this point, whether all of the cases will be heard on a single day.

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 allotment of 5 1/2 hours for oral argument appeared to be a modern record; 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.   There is also a hot political debate going on across the country now on federal vs. state power, and the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.

Indeed, one might argue that the most important debate of the 2012 Presidential Campaign will actually take place in the Supreme Court’s courtroom in March 2012. The result in this case is likely to shape a good deal of the debate during the General Election campaign that will just start getting heated up when the decision is likely to get handed down. If the law is upheld, it’s likely to embolden the base of the Republican Party who has spent the last two years campaigning on opposition to the President’s health care law, it’s also likely to embolden the President’s supporters and be seen as a huge political victory for him. If the law is struck down, the same thing is likely to happen. And, if the Court punts on the issue by invoking the Anti-Injunction Act, then the health care debate will continue and Republicans will make repealing ObamaCare a huge part of their re-election strategy. In any case, with four Justices over age 70, and three over 75, the issue of retirements and Supreme Court confirmation is likely to be a huge issue this election cycle, both in the Presidential race and in the Senate elections as the GOP tries to retake majority control of the upper chamber.

The fate of the law is unclear, obviously. The natural inclination given the state of Commerce Clause precedent is to assume that the law will be upheld, as I argued nearly a year ago. Also worth noting, although not entirely decisive, is the fact that the majority of Courts that have heard arguments on the law’s Constitutionality have upheld the law. While the Court may not take polls of the Circuits when it makes its decision, they are no doubt aware of this fact and it’s going to be hard to ignore the fact that most Federal Judges have ruled that the law is fully authorized by the Court’s own precedents. Of course, the Court could decide to distinguish those precedents, or even overrule them to some extent, although both are exceedingly rare events. Finally, of course, the Justices could decide to adopt the Fourth Circuit’s argument on the AIA, thus returning the health care debate to the rough-and-tumble of politics for at least the next four years.

This will no doubt be one of the most closely watched cases in years. One would hope that the Court might actually open up its Chambers and allow these important arguments to be broadcast to the public, but that’s probably unlikely. The best we can hope for in that regard, I think, is that they follow the procedure they have adopted in other high profile cases in recent years and allow the recording of the arguments to be made public immediately upon conclusion of the hearing. It would be beneficial to the public to actually hear these arguments, I think.

If you’re interested in keeping up with the case, one of the best places to keep an eye on will be SCOTUSBlog’s tracking page for the case. They’ll post all the briefs that get filed there when they get submitted, as well as analysis from legal experts on both sides of the many issues involved here. And, of course, we’ll keep on top of it here at OTB as well.

FILED UNDER: 2012 Election, Healthcare Policy, Law and the Courts, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Hey Norm says:

    There wasn’t any indication of Clarence Thomas recusing himself, eh?
    Republicans love the rule of law…until they don’t.

  2. Ron Beasley says:

    They will side with the insurance companies who will get lots of mandated business.

  3. Jay says:

    I think it’s important to note that the mandate is for coverage, not insurance. According to some lawyers discussing this exact issue on the New England Journal website, this is an important distinction, although I have no idea why.

    Also, it’s interesting that the only cost-cutting measure cited is the idea that it creates economies of scale. All other economic justifications are based on cost shifting.

    Here is the link to the full act, with the relevant part found on p143 (their pagination):

    The key parts:

    The requirement regulates activity that is commercial
    and economic in nature: economic and financial decisions
    about how and when health care is paid for, and
    when health insurance is purchased. In the absence of the
    requirement, some individuals would make an economic
    and financial decision to forego health insurance coverage
    and attempt to self-insure, which increases financial risks
    to households and medical providers.

    Health insurance and health care services are a
    significant part of the national economy. National health
    spending is projected to increase from $2,500,000,000,000,
    or 17.6 percent of the economy, in 2009 to
    $4,700,000,000,000 in 2019. Private health insurance
    spending is projected to be $854,000,000,000 in 2009, and
    pays for medical supplies, drugs, and equipment that are
    shipped in interstate commerce. Since most health insurance
    is sold by national or regional health insurance companies,
    health insurance is sold in interstate commerce
    and claims payments flow through interstate commerce.

    The economy loses up to $207,000,000,000 a year
    because of the poorer health and shorter lifespan of the
    uninsured. By significantly reducing the number of the uninsured,
    the requirement, together with the other provisions
    of this Act, will significantly reduce this economic

    The cost of providing uncompensated care to the
    uninsured was $43,000,000,000 in 2008. To pay for this
    cost, health care providers pass on the cost to private insurers,
    which pass on the cost to families. This cost-shifting
    increases family premiums by on average over $1,000
    a year. By significantly reducing the number of the uninsured,
    the requirement, together with the other provisions
    of this Act, will lower health insurance premiums.

    Under sections 2704 and 2705 of the Public Health
    Service Act (as added by section 1201 of this Act), if there
    were no requirement, many individuals would wait to purchase
    health insurance until they needed care. By significantly
    increasing health insurance coverage, the requirement,
    together with the other provisions of this Act, will
    minimize this adverse selection and broaden the health insurance
    risk pool to include healthy individuals, which will
    lower health insurance premiums. The requirement is essential
    to creating effective health insurance markets in
    which improved health insurance products that are guaranteed
    issue and do not exclude coverage of pre-existing
    conditions can be sold.

    Administrative costs for private health insurance,
    which were $90,000,000,000 in 2006, are 26 to 30 percent
    of premiums in the current individual and small group
    markets. By significantly increasing health insurance coverage
    and the size of purchasing pools, which will increase
    economies of scale, the requirement, together with the
    other provisions of this Act, will significantly reduce administrative
    costs and lower health insurance premiums.
    The requirement is essential to creating effective health
    insurance markets that do not require underwriting and
    eliminate its associated administrative costs.

  4. @Ron Beasley:

    The argument that Thomas must recuse himself is, as I discussed in February, utter nonsense.

  5. michael reynolds says:

    The conservative justices will vote it down — because they are partisans, pure and simple. Bush v. Gore settled that. It will come down to Kennedy.

  6. Hey Norm says:

    @ Ron…
    It’s not only that they will get a lot of business when the mandate kicks in…they already are getting a lot of business because of the ACA.
    As early as this past June it was clear that private market insurance companies were seeing significant growth in business because of the ACA.
    United Health Group, Inc., the nation’s largest health insurer, added 75,000 new customers working in businesses with fewer than 50 employees.
    Coventry Health Care, Inc., a large provider of health insurance to small businesses, added 115,000 new workers in 2010 representing an 8% jump.
    Blue Cross Blue Shield of Kansas City, the largest health insurer in the Kansas City, Mo. area, reported an astounding 58% increase in the number of small businesses purchasing coverage in their area since April, 2010-one month after the health care reform legislation became law.
    “One of the biggest problems in the small-group market is affordability,” said Ron Rowe, who oversees small-group sales for the Kansas City operation for Blue Cross Blue Shied. “We looked at the tax credit and said, ‘this is perfect.”
    Rowe went on to say that 38% of the businesses it is signing up had not offered health benefits before.
    Opponents of the ACA say it is the road to socialism. This kind of growth in the private sector shows just how full of sh** they are. Of course the current Spreme Court is full of sh** as well…as proven by the Citizens United ruling.

  7. Hey Norm says:

    @ Doug…
    That was my comment, not Ron’s.
    First…I consider many of your views nonsense…so the idea that what you consider to be nonsense is not…makes perfect sense.
    Second…subsequent to your Post in February Thomas finally released the details of his wife’s income from the tea party group Liberty Central, which fought President Obama’s health care reform law. His new financial disclosure form indicates that his wife, Virginia, who served as Liberty Central’s president and CEO, earned $150K from the group as well as $15K from an anti-health care lobbying firm she started.
    Previously Thomas had been forced to amend 20 years of financial disclosure forms to reflect hundreds of thousands of dollars she had earned working for the Heritage Foundation, the conservative think tank that also opposed Obama’s health care plan.
    From your February post:

    A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
    blah blah blah…
    (c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
    (d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
    blah blah blah…
    (iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
    and finally…
    (e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy

    Thomas’s wife advertises herself as a lobbyist for clients who want a particular decision — they want to overturn health care reform. Clearly her interests would be substantially affected by the outcome.
    In addition Thomas has said that he and his wife “believe in the same things”.
    So to review what you call nonsense: Thomas has a vested financial stake in the outcome, and has made statements regarding his position on the outcome before having heard the arguments.
    There is more than just the appearance of conflict of interest and compromised impartiality here.

  8. Norm,

    Of course there’s no legal authority for your interpretation of the Canon’s, which I addressed in the February post, but I recognize this isn’t about the law it’s about politics for you guys.

  9. Hey Norm says:

    @ Doug….
    Well my interest is in the policy which, despite the fact that it is a Republican policy, has become hyper-political…so yeah…what’s your point?
    I can only assume from your comment that you believe that the members of the Supreme Court who appointed Bush President, and then stated that: “…”Our consideration is limited to the present circumstances…” were apolitical?
    Talk about nonsense.

  10. Ron Beasley says:

    The mistake people make is thinking the SCOTUS is not political – it is and has been for decades.

  11. Stan says:

    @Doug Mataconis: It isn’t about politics, it’s about ethics. The conflict of interest in Thomas’s case is blatant, and it’s disgusting that he refuses to recuse himself.
    And it’s equally disgusting that you defend his actions.

  12. ponce says:

    It isn’t about politics, it’s about ethics.

    I think the only ethics libertarians believe in is naked self enrichment.

    Poll: Majority Now Support The Individual Mandate

  13. jan says:


    Poll: Majority Now Support The Individual Mandate

    Why should that matter now? After all, when the majority of people opposed healthcare, including the mandate, it made no difference for the dems in voting it in.

  14. Hey Norm says:

    If you read the polls back then you would have realized that a majority opposed the ACA…but the majority of those opposing felt it did not go far enough. I’m sure the wingnut blogs you read didn’t tell you that.
    Based on your comment I assume you are in favor of letting the Bush tax cuts expire…as they were passed by reconciliation…while the ACA passed by A 60 vote super-majority.

  15. sam says:


    the majority of people opposed healthcare [ACA]

    Until you asked them about the specific provisions, e.g. concerning pre-existing conditions; rescissions, etc. Then the approval rate shot up considerably.

    Executives of three of the nation’s largest health insurers told federal lawmakers in Washington on Tuesday that they would continue canceling medical coverage for some sick policyholders, despite withering criticism from Republican and Democratic members of Congress who decried the practice as unfair and abusive.

    The hearing on the controversial action known as rescission, which has left thousands of Americans burdened with costly medical bills despite paying insurance premiums, began a day after President Obama outlined his proposals for revamping the nation’s healthcare system.

    An investigation by the House Subcommittee on Oversight and Investigations showed that health insurers WellPoint Inc., UnitedHealth Group and Assurant Inc. canceled the coverage of more than 20,000 people, allowing the companies to avoid paying more than $300 million in medical claims over a five-year period. [Source]

    Most folks don’t like that stuff. Do you?

  16. An Interested Party says:

    …but I recognize this isn’t about the law it’s about politics for you guys SCOTUS.

    I wonder if Doug has ever addressed that…

  17. EMRVentures says:

    @sam: Bingo.

    If you remove the political labels that cue people how to answer polls, we are not a center-right nation. We are a solidly Democratic nation. Unfortunately, politics is more of a team sport than a policy seminar.