The Supreme Court on health reform: day one
on March 26th, 2012 No Comments
This week the Supreme Court is devoting an impressive six hours of argument, over three days, to the Affordable Care Act. Four different federal Courts of Appeal had reached decisions about various provisions of the Act; the Court asked to hear arguments about four specific issues:
- Does the Anti-Injunction Act keep the Court from deciding the constitutionality of the individual mandate until the various penalties imposed by various parts the Act are actually imposed (probably in 2014)?
- Is the “individual mandate” within the powers the Constitution confers on the Congress?
- Does the Act’s required expansions of State Medicaid programs violate the Constitution? and
- If some provisions of the Act are unconstitutional, are those provisions “severable,” allowing the rest of the Act to go into effect, or “inseverable,” forcing the whole legislation to fall?
I will be commenting briefly on the arguments each day. I should note, though, that oral argument is a very uncertain guide to the how the Court, or even its members, will vote. Some justices never say anything at oral argument (Justice Thomas last asked a question more than six years ago), some like to play devil’s advocate, and (more fundamentally) Justices views can evolve as the arguments proceed and as the draft opinions are written, and re-written, and re-written. So, take all predictions of the Court’s ultimate conclusions that are based on oral argument with a teaspoon of salt. (Take all predictions based on other ground with at least as much salt.)






