When the U.S. Supreme Court is in session, Friday afternoons are typically reserved for an exclusive conclave in which the justices discuss petitions from various litigants who hope the Court will condescend to review their cases. This week the Justices’ Conference will be moved up to Thursday, to accommodate the federal holiday, and it promises to be a busy meeting. The justices are scheduled to consider no fewer than five petitions for certiorari involving Obamacare: four from plaintiffs challenging the constitutionality of the unpopular law and one lonely petition filed in its defense by the Obama Department of Justice (DOJ). Because the constitutional questions raised by these petitions are grave, complex and manifold, most constitutional scholars believe the Court will agree to “grant cert” in at least one.
The highest profile petition involves Florida v. HHS, the constitutional challenge whose plaintiffs include officials from 26 states. Last August, the Eleventh Circuit Court of Appeals issued a bipartisan ruling declaring Obamacare’s individual mandate unconstitutional. Interestingly, that ruling has been appealed to the Supreme Court not merely by the vanquished DOJ, but by the victorious plaintiffs as well. The former’s appeal was inevitable, of course. And, while obviously pleased that mandate was struck down, the plaintiffs also want the decision reviewed because they believe the Eleventh Circuit should have followed the lower court’s lead in striking down the entire law pursuant to its lack of a severability clause. In addition, they also think the appeals court gave short shrift to their “commandeering” claim.
The “commandeering” issue arises from Obamacare’s dramatic expansion of Medicaid eligibility. The basic argument made by the plaintiffs is that the fiscal pressure associated with that expansion is so coercive that it is, in effect, an unconstitutional “commandeering” of the states. David Kopel, who teaches Advanced Constitutional Law at Denver University, explains it thus: “Under Obamacare, states must either: (1) Drastically expand Medicaid eligibility, thus setting themselves on the road to long-term fiscal ruin; or (2) Be punished with a complete cut-off of all Medicaid funds, thus forcing the states to double their own Medicaid spending (a fiscal impossibility) in order to maintain benefits for current recipients.” This, the states maintain, is a violation of the Tenth Amendment and should have been struck down accordingly.
These concerns notwithstanding, the Eleventh Circuit’s decision to strike down the mandate guaranteed that Obamacare would be argued before the Supreme Court. Not only did the Eleventh Circuit disagree with Sixth Circuit on the constitutionality of the mandate, the decision forced the Obama administration to suddenly reverse its foot-dragging strategy and file its own petition for certiorari. The DOJ’s official position on this pirouette is that the administration anxious to have the issue decided once and for all, but this claim should be taken with several tons of salt. First, it conflicts with actual behavior of the Justice Department over the past year. More importantly, the DOJ’s request for review rather slyly raises the specter of the Anti-Injunction Act (AIA), which is almost certainly a last ditch effort at delay.
Specifically, the DOJ’s petition asks the Court to decide “whether the suit brought by respondents to challenge the minimum coverage provision of the [ACA] is barred by the Anti-Injunction Act.” The AIA forbids court challenges to taxes before they have gone into effect, and it is obviously irrelevant unless the individual mandate and its accompanying penalty are construed as a tax. This proposition has been rejected by nearly all of the judges who have ruled on it. Moreover, the DOJ itself conceded six months ago that “the Anti-Injunction Act is not applicable” to the mandate question. Thus, the Justice Department’s lawyers can only be raising this issue again in the forlorn hope that the Court will use it as a pretext to avoid ruling on the individual mandate until after the upcoming presidential election.
Not coincidentally, the AIA issue is addressed head on in another of the cert petitions to be discussed by the justices on Thursday. The plaintiffs in Liberty University v. Geithner ask the justices if AIA prevents the courts from addressing the authority of Congress to enact such a far-reaching law “when the challenged mandates are penalties, not taxes, where the government argues Congress never intended the AIA to apply, and where the Petitioners are currently being forced to comply with various parts of the law …” Considering that the President himself has repeatedly asserted that the mandate is not a tax, and that his Justice Department says AIA doesn’t apply, common sense suggests that the Supreme Court can’t possibly answer that question in the affirmative. But these people move in mysterious ways.
The remaining two petitions to be considered on Thursday involve Thomas More Law Center v. Obama and NFIB v. Sebelius. The former presents the Court with the following unambiguous question: “Does Congress have authority under the Commerce Clause to require private citizens to purchase and maintain ‘minimum essential’ healthcare insurance coverage under penalty of federal law?” The latter returns to Obamacare’s conspicuous dearth of language, a severability clause, that would permit the rest of the law to stand if the mandate is found to be unconstitutional: “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.”
Conspicuously absent from the cases to be discussed on Thursday is Virginia v. Sebelius. True to form, the DOJ has been dilatory in filing a response to Virginia’s petition and therefore it can’t be included in this week’s Justices’ Conference. But the only unique issue Virginia v. Sebelius raises involves whether the Old Dominion has standing to challenge Obamacare based on a state law passed primarily to preempt a nationwide insurance mandate. That is by no means an easy question to answer, and the Court can easily select cases from the scheduled five that cover the most important questions surrounding Obamacare and its egregious mandate without the benefit of Virginia’s petition.
So, what will the Court do? Perhaps nothing. As Lyle Denniston points out, “The Justices have the discretion to grant all, some, or none, since none reached the Court as a mandatory appeal.” However, few observers believe the justices will take the last alternative, particularly in light of the DOJ’s petition. Brad Joondeph of Santa Clara Law suggests, “[We] are now probably looking at oral argument in the last week of March.” That time table suggests a ruling in June, right in the midst of the election cycle. That should spice up the presidential race.