Bench Memos

Obamacare Marathon Set for Supreme Court

This morning the Supreme Court accepted review of three different Obamacare cases and appears to be scheduling them to allow for lots of time to discuss the four different questions arising out of three petitions for cert in the Eleventh Circuit case:

Ninety minutes are allotted to discuss the severability question raised by the 26 states and private plaintiffs in the Eleventh Circuit case. Giving so much time to the severability analysis itself suggests that the Court isn’t willing to simply assume Obamacare will be upheld, and means that there will be guidance going forward for other courts determining severability even if the Supreme Court upholds Obamacare. As Paul Clement commented this weekend at the Federalist Society National Convention, with a bill that long (and fully read by so few!), it’s almost a guarantee that at least one provision is unconstitutional.

The Court also granted in the government’s appeal of the same Eleventh Circuit case, allotting two hours of argument on the Commerce Clause question that is central to the case and one additional hour of argument on the question of whether suit is barred under the Anti-Injunction Act (which requires individuals to pay a tax before they can challenge it, and which would have the effect of delaying review until the rest of the law comes into effect). The Anti-Injunction Act analysis was embraced by the Fourth Circuit as well as Judge Kavenaugh’s dissent in the D.C. Circuit opinion last week.

The Court finally separately granted cert on a question raised by the states regarding whether the dramatic expansion of Medicare conditioned on losing all federal Medicare funding is coercive. That question presumably will receive the normal hour of argument time and should settle a long-standing question of whether there are any real limits on what conditions the federal government puts on the receipt of federal funds.

This adds up to marathon five and a half hours of Obamacare argument, on four different questions — probably a historic event in and of itself, in addition to the obvious import of so many of the questions being considered. Better start camping out now for the quadruple-feature arguments.

No indication that Justice Kagan plans to recuse herself from the case, despite her involvement with the case and the law (which she called “simply amazing“) as Solicitor General.   


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