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Supreme Court Will Examine PPACA in March

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The Supreme Court will hear arguments on the constitutionality of the healthcare reform law and other issues pertaining to it for three days starting March 26.

Total arguments will be comprised of 5 ½ hours under a decision by the court on Nov. 14.

Analysts and lawyers do not expect a decision in the case until late June.

George Patton Jr., an appellate lawyer with Bose McKinney & Evans LLP in Washington, D.C. and Indianapolis, said the key to the case is the order in which they are hearing the oral arguments and the amount of time they allot to arguments on each issue.

He said the fact that the Court will review the anti-injunction issue first is the “only twist to the case.” He calls it an “important issue and a sleeper.”

Anti-injunction deals with whether the Court must first wait for the tax to be imposed on those who don’t want to buy individual insurance and will then sue to not pay it. This means that a decision on the constitutionality of the individual mandate may have to be delayed until 2015.

Patton said the fact they will hear the individual mandate issue next, and have granted two hours for oral arguments, indicates the importance of this issue.

Also, the fact that they are reserving arguments on the Medicaid issue for last, and reserving the least time to hear it indicates they regard this as the least important issue, Patton said.

The hearings will open March 26 with a one-hour debate on the threshold issues of whether a federal law called the Anti-Injunction Act makes challenges to the mandate premature until 2015.

The next day, according to a schedule released by the High Court Monday, the judges will hear two hours of argument on the central issue of the constitutionality of mandating that citizens buy health insurance or pay a penalty.

The provision is often called the individual mandate; the announcement called it the minimum coverage provision.

 On March 28, the court will hear arguments on two other issues related to the law, the Patient Protection and Affordable Care Act (PPACA).

It will first consider for 90 minutes whether the provision may be severed from the balance of the statute. That is what the United States Court of Appeals for the 11th Circuit held when it struck down the provision.

The court will then hear an hour of argument as to whether Congress can constitutionally require that states expand their Medicaid services, as mandated by the law. This issue was raised in the 11th Circuit case by 26 states. The states oppose the provision of the law that requires an expansion of Medicaid, the combined federal and state program that subsidizes health care for low-income Americans.

Lawyers for the Obama administration have repeatedly argued that the individual mandate is a core part of the law and tied to another part of the law, one forbidding insurers to turn away applicants, and the barring of them from taking into account pre-existing conditions. If the mandate falls, lawyers for the administration have argued, those provisions must fall with it.

Because each side endorses the part of the 11th Circuit’s decision concerning severability, the court invited a second Washington lawyer, H. Bartow Farr III, to make the argument that the provision “is severable from the entirety of the remainder of the act.”

Oddly, the oral arguments will start with an issue that neither the Obama administration nor opponents of the law consider critical.

As a result, the court appointed a Washington lawyer, Robert Long, to argue the issue.

The court is hearing that issue because the a panel of the 4th U.S. Circuit Court of Appeals, based in Richmond, accepted that argument in September and in November, a dissenting judge on the U.S. Court of Appeals for the D.C. Circuit agreed in a decision handed down in November.

The issue is whether the insurance-mandate penalties included in the PPACA are a type of tax that can only be challenged after it is collected, rather than before. If the court determines that it is premature to deal with the core issue, the court would not have the legal power to consider such a challenge until people are required to pay that tax starting in January 2014, legal scholars say.

The Fourth Circuit ruled 2-1 that it did not have jurisdiction to decide the constitutionality of the law because the Anti-Injunction Act requires the person to pay the tax first, seek a refund, and in later proceedings raise the constitutional issue.  As a result, this court sidestepped dealing with the mandate issue, saying it was premature.

But the core issue is whether the mandate to buy insurance is unconstitutional.

 Challengers, including 26 states and most conservatives, view the insurance requirement as an unprecedented intrusion on individual liberty. They contend that Congress cannot use its interstate commerce powers to regulate citizens who choose not to participate in the health insurance market.

The core constitutional issue revolves around the Commerce Clause of the constitution.


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