The Supreme Court today said that it would consider several challenges to last year's health care reform law.
The Court says it wants to hear about three questions:
(1) Did Congress have authority under the Commerce Clause to pass the Affordable Care Act's so-called individual mandate? So far, two courts of appeals have held that the mandate is constitutional, and one has gone the other way. The Court will have two hours of argument on this issue.
(2) Is the mandate severable from the Act as a whole? Members of Congress who voted for the law justified the mandate, at least in part, on the ground that the Act's other provisions would not work (or work well) without the mandate. So, if the mandate is unconstitutional, does the whole Act fall, or does the rest of it stand (meaning, the mandate is severable), leaving it to the Executive Branch and perhaps Congress to make a mandate-less Affordable Care Act work? Recall that when the Eleventh Circuit overturned the mandate, it chucked the rest of the law too. [Correction: The Eleventh Circuit found the mandate severable; the district court in that case had chucked the whole law.] The Court will have 90 minutes of argument on this issue. If the Court rules that the mandate is constitutional, it will not, of course, reach the severability question.
(3) Does the (tax) Anti-Injunction Act, 26 U.S.C. ยง 7421(a), prevent the courts from addressing a challenge to the Affordable Care Act until it is challenged by someone whose taxes have been assessed or collected under the Act (which cannot happen until 2014)? In other words, is it too early to bring a challenge to the constitutionality of the mandate? The Court will have an hour of argument on this issue. If the Court rules that the challenges were impermissible under section 7421(a), it will not, of course, reach either of the two questions above. [Prediction: The Court will reach the merits of the case now.]
UPDATE: Lyle Deniston at scotusblog points out that the Court has scheduled another hour of argument on whether the Act's provisions expanding Medicaid are constitutional. So, that's 5 and 1/2 hours of argument. Wow!
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