Supreme Court Hears Challenges to Affordable Care Act

The Supreme Court hears  challenges to the Affordable Care Act this week.  Below, the Court’s links to hearing the proceedings on each day.

A summary of the questions at issue from the NY Times follows. News and commentary are widespread; some good sources include C-Span and Politico. - Ellen Shaffer


The Court will hear argument in the Patient Protection and Affordable Care  Act cases on March 26, 27, and 28. Because of the extraordinary public interest  in those cases, the Court will provide the audio recordings and transcripts of  the oral arguments on an expedited basis through the Court’s Website.

The Court will post the audio recordings and unofficial transcripts as soon  as the digital files are available for uploading to the Website. The audio  recordings and transcripts of the March 26-28 morning sessions should be  available no later than 2 p.m. The recording and transcript of the March 28  afternoon session should be available no later than 4 p.m.

Anyone interested in the proceedings will be able to access the recordings  and transcripts directly through links on the homepage of the Court’s Website.  The homepage currently provides links to the orders, briefs, and other  information about the cases. The Court’s Website address is

Audio recordings:

Monday: Is the case ripe?:

Tues.: The Individual Mandate:


11-398-Monday -  is the case ripe?

11-398-Tuesday – Individual Mandate

Transcripts Generally:

Background documents online at:

Audio on Individual Mandate (Tues. 3/27/12):

Briefs at American Bar Assn. website:

Dept. of Health and Human Services v. Florida, Docket No.,
(Anti-Injunction Act)

Department of Health and Human Services v. Florida, Docket No.,
(Minimum Coverage Provision)

Dorsey v. United States, Docket No., 11-5683 and Hill v. United States, Docket No., 11-5721 (consolidated)



A Guide to the Supreme Court Challenges to Obama’s Health Care  Law

Over three days starting March 26,  the Supreme Court will hear arguments in an appeal from a decision largely  ruling for 26 states, a business group and several individuals who contend that  the 2010 health care law, President Obama’s signature legislative achievement,  is unconstitutional. Related  Article »

The Question: Is it too early to consider this case since the health  law’s penalties do not start until 2014?

The central provision of the health care law, often  called the individual mandate, requires most Americans to obtain health  insurance or, starting in 2014, face a penalty.

A 19th-century law, the Anti-Injunction  Act, forbids challenges to tax assessments until they are due, barring suits “for the purpose of restraining the assessment or collection of any tax.” The  Supreme Court had interpreted the term “tax” very broadly for purposes of the  law, and it has suggested that the act is “jurisdictional,” meaning that courts  are powerless to hear suits barred by it even if both sides agree to  proceed.

If the Supreme Court considers the individual mandate a  tax under the Anti-Injunction Act, it may conclude that it cannot hear a  challenge until April 15, 2015, when the first penalties become due.

The  United States Court of Appeals for the Fourth Circuit and a  dissenting judge on the District of Columbia Circuit agreed that the act  requires courts to defer consideration of the challenge to the individual  mandate.

The federal government initially argued that the act  applied to bar the challenges, but it has changed its mind and now asks that the  suits be allowed to proceed, agreeing with its opponents on this point. The  states challenging the law say the act does not apply to them, as opposed to  individuals, in any event. Because all of the parties agree that the Supreme  Court may hear the case, the  justices appointed a lawyer to argue that the act applies.

Among the questions the Supreme Court is likely to  consider in connection with the act are whether a challenge to the mandate is  the same thing as a challenge to how it is enforced, whether the penalties  imposed by the health care law are taxes and whether the act is an inviolable  jurisdictional command to courts.

Congress remains free, now or later, to amend the act to  allow challenges to the health care law.

Date of Hearing: March 26

Time Allotted: 90 minutes

40 min.: Robert A. Long, friend of the court, appointed to argue  that the suit is barred.

30 min.: Solicitor General Donald B. Verrilli Jr. says the  challenges may go forward.

20 min.: Gregory G. Katsas, representing the National Federal of  Independent Business and other private parties, agrees with the government on  this point.

The Question: Is the individual mandate constitutional?

This is the heart of the case. The lower courts issued  conflicting decisions in the  numerous challenges to the health care law, and the Supreme Court agreed to hear  an appeal from only one of them, from the United States Court of Appeals for  the 11th Circuit, in Atlanta. That decision struck down the  mandate. In contrast, the Sixth Circuit, in Cincinnati, and the District of  Columbia Circuit upheld the law, while the Fourth Circuit, in Richmond, Va.,  said the constitutionality of the law was not yet  ripe for review.

The federal government argues that Congress was  authorized to enact the individual mandate under two provisions of Article  I, Section 8 of the Constitution — its power to regulate commerce and its  power to tax. The leading Supreme Court precedents support the mandate, too, the  government says, because the health care law addresses a pressing national  problem that is economic in nature.

Opponents of the law say that the requirement to buy a  product or service is unprecedented, regulates inactivity rather than activity  and would allow Congress essentially unlimited power to intrude on individual  freedom. They say the government cannot articulate a principle that would limit  its power were the law upheld.

Date of Hearing: March 27

Time Allotted: 2 hours

60 min.: Solicitor General Donald B. Verrilli Jr. defends the law.

30 min.:Paul D. Clement, representing 26 states, challenges the  law.

30 min.:Michael A. Carvin, representing the private parties,  challenges the law.

The Question: If the individual mandate is ruled unconstitutional, must  the rest of the health law fall as well?

Should the Supreme Court strike down the individual  mandate, it must decide whether some or all of the balance of the law must fall  as well.

Though the lower-court ruling issued by the 11th Circuit  determined that Congress had exceeded  its constitutional authority in enacting the individual mandate, it said the  balance of the law survived. Neither side agrees. The government argues that two  provisions requiring insurance companies to accept all applicants at fixed rates  are intertwined with the mandate and must fall along with it. Opponents of the  law say the mandate is its keystone, meaning that no part of the law can survive  without it. Here, too, the Supreme Court has  appointed a lawyer to argue a position that neither party advances – that  the mandate may be surgically removed if the court holds it  unconstitutional.

Date of Hearing : March 28

Time Allotted: 90 minutes

30 min.: Paul D. Clement, representing 26 states, argues that the  entire law must fall.

30 min.: Deputy Solicitor General Edwin S. Kneedler argues that  most of the law should survive, even if the mandate is struck down.

30 min.: H. Bartow Farr III, friend of the court, appointed to  defend the ruling that struck down only the mandate.

The Question: Was Congress entitled to impose conditions on the states  in expanding the Medicaid program?

The sprawling 2010 law contains many provisions not  directly in front of the court. But the justices did agree to hear a challenge  to a provision relating to Medicaid, a challenge by the 26 states that argues  that Congress exceeded its constitutional authority by expanding the eligibility  and coverage thresholds that states must adopt to remain eligible to participate  in the joint federal-state program that provides health care to poor and  disabled people.

The problem, they say, is that Congress did not tie the  law’s new conditions only to new federal money but rather made the new terms a  condition of continued participation in Medicaid, threatening states with the  loss of all federal Medicaid funds.

The federal government argues that such shifting  conditions are routine in all sorts of federal programs and that the Medicaid  program itself specified at the outset that the rules could  change.

Date of Hearing: March 28

Time Allotted: 1 hour

30 min. Paul D. Clement, representing 26 states, challenges the  law.

30 min. Solicitor General Donald B. Verrilli Jr. defends the law.

Links to Briefs: (minimum coverage)  Medicaid expansion; consolidated

The Court heard arguments today, Monday, March 26, 2012, on the Anti-Injunction Act issue of the Patient Protection and Affordable Care Act cases. (Dept. of H&HS v. Florida, 11-398) The audio recording and unofficial transcript of the oral argument on the Anti-Injunction Act issue are available at this link.

This entry was posted in Archives, Implementing Reform. Bookmark the permalink.

Leave a Reply