U.S. Supreme Court

Another Health Care Law Scenario: Court Sets the Case for Reargument


As expectations build for the U.S. Supreme Court’s ruling on the health care law, one blog focuses on an option that has received little attention: The case could be set for reargument next term.

SCOTUSblog calls the possibility “the most deflating option” for court watchers, but acknowledges the appeal. “If a court already wearied after a tough nine months just doesn’t have the energy to wrap up one more big case, a delay would be a way to get out of town and start the summer recess,” the blog says.

SCOTUSblog says the option is still on the table, although it questions whether the court would have any appetite to hold arguments all over again.

If the court turns to the legal issues, it will consider these questions:

• Was the case brought too soon? The issue is whether the penalty is a tax and, if so, whether an 1867 federal law called the Anti-Injunction Act bars courts from hearing a challenge until the tax is paid. “Suppose that the court finds that the AIA does apply,” SCOTUSblog says. “That takes off the court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it. That is the three-in-one potential of the AIA question.”

• Is the law’s health insurance mandate constitutional? The provision requires consumers to buy health insurance or pay a penalty. Solicitor General Donald Verrilli argued Congress was authorized to act under the commerce clause, which allows regulation of economic activities that have a substantial effect on interstate commerce. He also argued the insurance mandate can be upheld under Congress’ power to tax and spend.

• If the court strikes down the insurance mandate, can other parts of the law still stand? The federal government has argued that only two provisions of the law should fall along with the mandate, according to SCOTUSblog and the Wall Street Journal Law Blog. One says insurers may not turn down people with pre-existing medical conditions. The other says insurers can’t vary premiums based on the age or health of those seeking coverage.

• Did Congress overstep its spending power by coercing states to expand Medicaid? Lawyer Paul Clement had argued the federal government was unconstitutionally coercive by increasing Medicaid funding to states in exchange for an expansion of the program. “The court has never actually used the ‘coercion’ theory to nullify any federal law,” SCOTUSblog says, “but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion.”

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