(Alex Brandon; AP)

 

The U.S. Solicitor General is asking the Supreme Court to grant it more time to air its views on the Anti-Injunction Act issue during oral arguments on the constitutionality of the healthcare reform law.

The development is important because appellate lawyers call the AIA issue a “sleeper.” If the court rules that this is a key threshold issue, it may determine that it cannot rule on the constitutionality of the healthcare reform law until 2015, after which Americans must pay a penalty under the law for failing to get healthcare insurance.

“This highlights the increasing importance of this issue as part of the Court’s consideration of the health care law,” said George Patton, Jr., an appellate lawyer and a partner at Bose McKinney & Evans LLP, Washington, D.C. and Indianapolis.

He said the federal government has a long-term institutional interest in making sure the AIA will stop other cases from going forward while still allowing the health care case to be decided by the Court. “In essence,” Patton said, “the United States is trying to thread the needle.”

Patton also said that, as noted in the motion, “The positions of the United States and private parties is also different on severability–the federal government argues that most of the health care law would remain if the minimum coverage provision is struck down, while the private parties say the entire law is not severable from the minimum coverage provision.”

The Solicitor General’s arguments are contained in a 10-page motion submitted to the Supreme Court this week.

The Supreme Court will hear arguments on the law, the Patient Protection and Affordable Care Act, over a three-day span in late March. The first argument will be March 26.

In general, opponents of the law argue that it is unconstitutional for the government to require citizens to purchase health insurance or pay a penalty.

Other arguments involve whether the government has the authority to require states to pay more for Medicaid in order to finance healthcare for the poor. 

Another issue is “severability,” whether declaring the mandate to purchase insurance unconstitutional strikes down the entire law, or just the mandate portion.

In its motion, the Solicitor General, Donald B. Verrilli, Jr., said the parties to the case “are in agreement on the allocation of time for the minimum coverage provision and Medicaid issues” during oral arguments in the case, scheduled for late March.

But, the Solicitor General said in the motion, “With respect to the AIA and severability issues, however, although the amicus curiae appointed by the Court on each of those issues agrees with the allocation of argument time to him under the proposed allocation set forth below, counsel for the private and state parties do not agree with the proposed allocation.”

The Solicitor General wants the argument on the AIA issue extended to 90 minutes.

Verrilli says in his motion that, “That expansion is appropriate in light of: the importance of this threshold issue, which has divided the lower courts and will determine whether the Court can entertain respondents’ challenge to the minimum coverage provision of the Affordable Care Act at all; the complexity of the legal issues involved; and the Court’s appointment of an amicus to argue that these suits are barred by the AIA.”

The motion said that the Solicitor General has been authorized “to represent that, as noted above, the Court-appointed amicus on this issue and counsel for the respondents join in this request to expand the oral argument time.”

The motion further says that, the Government, “alone among the parties, has a critical long-term institutional interest in the sound application of the AIA, because the Government has been and will continue to be the defendant in numerous cases in this Court and the lower courts in which the AIA is at issue.”

Verrilli adds in the motion, “It therefore is important that there be an opportunity for counsel for the Government to present, and for the Court to consider, a full explanation of the Government’s position, which will be afforded by our proposed allocation.

Regarding severability, the government also seeks a re-ordering of time.

In the Solicitor General brief, Verrilli said, “petitioners and the Government do not agree on the proper result on severability if the Court were to hold the minimum coverage provision unconstitutional.”

The motion said that “Petitioners contend that in that event the entire Affordable Care Act must fall, while the Government takes the position that the Act’s provisions concerning guaranteed issue and community rating in the insurance market are inseverable from the minimum coverage provision but that the rest of the Act is severable.”

The motion said the “Government is thus in a position between the amicus and petitioners.

“Accordingly, counsel for the Government must have sufficient time at oral argument not only to respond to the amicus’s position that the minimum coverage provision is severable from the Act’s community-rating and guaranteed-issue provisions, but also to respond to petitioners’ argument that the minimum coverage provision is inseverable from the entire rest of the Act,” the motion said.