Opponents of the healthcare reform law want equal time with the government for oral arguments on the Anti-Injunction Act (AIA) issue when the constitutionality of the law is heard by the Supreme Court (SC) in late March.

In a filing, the 26 states and other opponents of the law take issue with the proposal of the Solicitor General (SG) for time allotment for oral arguments on the AIA issue when the issue is heard by the High Court March 26.

The case at issue is U.S. Department of Health and Human Services, et al, petitioners, v. State of Florida, et al, respondents, No. 11-398. There are two other cases involved, No. 11-393, and No. 11-400.

It involves the constitutionality of the law, the Patient Protection and Affordable Care Act. Overall, the SC will hear arguments on the case over a three-day span.

The motion in opposition to the government’s position on the AIA oral arguments issue raises once again the point made by appellate lawyers such as George Patton, Jr., an appellate lawyer and a partner at Bose McKinney & Evans LLP, Washington, D.C. and Indianapolis, that the AIA issue is a “sleeper.”

That’s because if the Supreme Court finds that if the court rules this is a key threshold issue, it may determine that it cannot rule on the constitutionality of the healthcare reform law until 2015, after people pay a penalty under the law for failing to get healthcare insurance and seek a refund.

The Solicitor General, Donald B. Verrilli, Jr., wants the argument on the AIA issue extended to 90 minutes from 60 minutes. The SG view is that the court-appointed lawyer should get 40 minutes, the SG 30 minutes and the opponents only 20 minutes.

The challengers argue in their brief that they should get 40 minutes of the 90 minutes on severability, and the government and lawyer arguing on behalf of the AIA provision should get 25 minutes each.

In its brief, the SG says that the government is taking a middle-ground position. The court-appointed lawyer is taking the position that specific challenges to the mandate are barred by the AIA.

But, in a blog Thursday, Lyle Denniston, who formerly covered the SC for The Baltimore Sun, says that opponents of the law are arguing in their brief that the position of the government and the court-appointed lawyer on the AIA issue are more aligned than meets the eye.

“While the government does not share Long’s view that the specific challenges to the mandate are barred by the AIA, the challengers’ motion said, the government actually has a long-term interest in having that bar interpreted broadly in order to insulate other tax provisions from pre-enforcement challenges in court,” Denniston said

He cites comments by the challengers in their brief that, “The federal government is at least as concerned, if not more concerned, with rebutting the [challengers'] broader arguments about the AIA’s inapplicability as with securing a narrow exception to the AIA to cover the facts of this case but no other.”  

Denniston also cited comments by the challengers that “The government, it added, ‘can win by losing’ on its AIA position.

The opponents are led by the National Federation of Independent Businesses, and 26 states, led by Texas and Florida. Other states include Utah, Nebraska, South Carolina, Alabama, Louisiana, Michigan and Colorado.

In their brief asking for more time on the AIA issue, the opponents say that, “the SG’s proposed allocation of the expanded time would give 70 of the 90 minutes to counsel who believe that the AIA should be broadly construed and who agree on the bottom line that the challenges to the individual mandate in this case should fail, either on the merits or for lack of jurisdiction.”

The opponents add that, “To be sure, the SG contends that in the unique circumstances of this case, the AIA does not bar the specific challenges at issue here.

“But as his motion makes clear, the SG takes that position begrudgingly and in full recognition that it is contrary to the federal government’s long-term interests,” the opponents’ brief to the court says.

The brief is dated Feb. 6.

“Indeed, the motion makes clear that the federal government is at least as concerned, if not more concerned, with rebutting the States’ and Private Challengers’ broader arguments about the AIA’s inapplicability as with securing a narrow exception to the AIA to cover the facts of this case but no others,” the opponents’ brief argues.

“That underscores the reality that, as to the AIA issue, the Solicitor General can win by losing,” the brief said.

The opponents tell the court that, “A ruling that the AIA applies in this case would be fully consistent with the federal government’s long-term interest in the AIA’s broad application and its short-term interest in defending the individual mandate against constitutional attack.”

They added: “For all these reasons, allocating a full 70 minutes to counsel who oppose the challengers’ broader argument against the AIA’s application is inequitable and will not best serve the Court in exploring these issues.”