Briefing for the Supreme Court cases

The Court granted cert on several questions from the 11th Circuit cases. It appears we get 90 minutes on severability; one hour on the Commerce Clause; one hour on the Anti-Injunction Act; and one hour on the Spending Power/Medicaid expansion.

Worst-case scenarios:

1. For the insurance industry: no jurisdiction to hear the individual mandate under the AIA (3 more years of uncertainty); or worse still, only the individual mandate is severed, leaving the insurance market reforms in place
2. For progressive health policy: strike down the Medicaid expansion under the spending power (unlike the individual mandate, you can’t fix this one without Congress)
3. For conservatives: no AIA jurisdictional bar; uphold both commerce and spending
4. For the Obama Administration: combine 1 & 2 – 5 conservative justices seize the moment to apply Dole to strike down Medicaid expansion, gutting a key part of the ACA, while perhaps a bipartisan group refuses to rule on the commerce clause due to the AIA, leaving plenty to fight about in the next election (h/t to my colleague Abigail Moncrieff)

The actual language of the cert grants (and length of time for the oral arguments):

First consolidated cases (90 minutes):

NFIB v. Sebelius, 11-393. Granted:

The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.

Florida v. HHS, 11-400. Granted on Q3 only (but see below for Q1):

3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?

(It’s not entirely clear if these consolidated cases are granted solely on severability or also on Commerce Clause; I lean towards the former, since Commerce Clause is explicitly granted below)

Second case (2 hours).  Dep’t of H&HS v. Florida, 11-398. Q1 granted:

1. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.


Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. sec. 7421(a).

Third case (one hour).  Florida v. HHS, 11-400. Granted on Q3 only:

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

My very rough guess on a briefing schedule, assuming orals March 26-27, 2012:  UPDATE – see ACA Litigation Blog for an earlier briefing schedule

• Petitioner’s briefs due as early as January 23, 2012.
• Petitioner’s amici briefs due around Feb 1
• Respondent’s briefs due around Feb. 21
• Respondents’ amici briefs due around March 1.

It appears that the federal government is the petitioner on Commerce Clause (depending how you read the grant in 11-393/11-400) and AIA and the respondent on the remaining questions.UPDATE – or, as Brad puts it, both sides are both.

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