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.)
The Court heard argument today on the first issue. The Anti-Injunction Act, passed in the 1860s, requires parties complaining of federal taxes to wait until the taxes are actually assessed before suing about them. One of the lower federal courts (the Fourth Circuit) held that this act deprived it of jurisdiction to decide the Act's constitutionality (though that didn't prevent two of the three judges from giving us their thoughts - one for, one against).
It has seemed to many of us that the Court is unlikely to dismiss these cases under the Anti-Injunction. It did not have to reach to take this court session and could have waited to schedule for argument in the fall - and for decision until after the election. No one - I think that's literally true - wants to wait several more years to know whether this Act is constitutional. Actually, it is literally true of the parties. All the parties, the opponents of the Act and the Government, supporting it, argued that the Court has jurisdiction to hear and decide the case. The Court had to appoint an outsider as a "friend of the Court" (amicus curiae) to argue that the Anti-Injunction Act deprived it or jurisdiction. Happily for the Court, there are plenty of ways around the Anti-Injunction Act in this case in the event it doesn't want to pull (warning: dated popular culture reference, Saturday Night Live ca. 1977) an Emily Litella and dismiss the cases, saying "Oh, never mind!"
One footnote here - the Anti-Injunction Act would only apply to the individual mandate part of the cases before the Court. The requirement that states that want to have a Medicaid program (all of them, at least right now) expand their programs does not involve a tax (or a penalty) and clearly does not fall within the Anti-Injunction Act.
The tea leaves from today's oral argument are certainly consistent with the idea that the Court is not about to dismiss the individual mandate claims in the cases as barred by the Anti-Injunction Act. There is a lot of "inside baseball" about how the Court might get around it, but, for those of you who are not interested in the intricacies of federal appellate jurisdiction, the bottom line is that some Justices expressed interest in at least three different ways of avoid the Anti-Injunction Act.
It is still possible that when the Court comes to vote on the case - and as the Justices come to write and argue about various opinions in the case - that it seems to five Justices that dismissing the cases for lack of jurisdiction is the "least bad" way for them to proceed. But I think that's unlikely - it would require there to be a real mess in the Justices' approaches to the merits of the case . . . to which they turn tomorrow.
Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.