Supreme Court Will Examine PPACA in March

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.