The Supreme Court said Monday it will review President Obama’s health care overhaul, setting up an election year legal showdown.
In an apparent effort to be as comprehensive as possible, the court certified four questions for review. First, and most important: Did Congress exceed its constitutional authority in requiring virtually all Americans to have basic health care coverage?
The second: If the individual mandate is unconstitutional, does the rest of the law stand? Even the government now says there would be no way to provide the goodies everyone likes in this law without the expanded pool of people paying into the system.
The third question: Does the law impose unconstitutional conditions on the states by requiring them to pay 5 percent more into Medicaid by 2017 to cover the increased number of people under the program.
And the last question: Is it is premature to decide the first three?
As if to underline the significance of the case, the court allocated 5 1/2 hours for oral argument, the longest argument in modern times.
Were the court to invalidate the statute in its entirely, it would roll back many of the provisions already benefiting millions of Americans.
One of the most popular lets young people up to age 26 stay on their parents’ health insurance plans. Another makes almost everyone with current health insurance eligible for preventive care services like immunizations and cancer screenings without having to pay a deductible or copayment.
And seniors on Medicare are seeing the gap in their prescription drug coverage — known as the doughnut hole — gradually being closed. All those things would go away if the law was struck down in its entirety.
In deciding to examine the health care law, the court selected as a vehicle a challenge brought by Florida and 25 other states, plus the National Federation of Independent Business. Of the four cases ruled on by the lower appeals courts to date, this was the only one in which any part of the law was struck down. It is also the biggest case, with challengers from many states and from the private sector as well.
The justices may also have chosen the Florida case because the lawyers who represent the parties in the state’s case are old hands before the court, and well known for the quality of their work. The justices do take that kind of thing into consideration in choosing among cases, particularly a case like this one with huge economic and political ramifications.
The argument will likely take place in March, with a decision by the end of June, four months before the 2012 election.
Just how that timing will play in the campaign is uncertain. On the one hand, if the court were to uphold the law, it might galvanize opponents seeking to have congress revoke it, but if the law were struck down, it might take some steam out of the anti-Obama movement.
In the past, it has usually been those on the losing side of major Supreme Court cases who tend to get motivated. For example, Roe v. Wade, the famous case that legalized abortion, is credited with creating the modern anti-abortion movement.
And yet, in this instance it probably wouldn’t help President Obama to have his defining domestic legislative achievement struck down as unconstitutional right as he’s running for re-election. It could give Republicans a huge “I told you so”moment. So the political fallout in this case isn’t easy to predict.
The length of the oral argument set by the Court for the health care challenge is a recognition of the case’s importance. At 5 1/2 half hours, the argument will be the longest in more than 45 years.
Time set aside for argument has changed markedly over the course of American legal history. Before 1849, there was no time limit at all, and counsel would often go on for days. In 1849, the increased caseload caused the justices to set a two hour limit per side, which was reduced to one hour in 1925, and a half hour per side in 1970, which is where it remains for most cases today.
But big cases, with many parties, and complexities, sometimes get more time. The 1974 Nixon tapes case lasted three hours. Bush versus Gore went 90 minutes. The 1971 Pentagon Papers took two hours; the challenge to the McCain-Feingold campaign finance law in 2003 was four hours.
Some of the longest arguments in the 1950s and 1960s involved civil rights. The landmark test of segregated schools was argued for five hours when it first came to the Court. The 1965 challenge to the Voting Rights Act was argued for seven hours, over two days. The health care challenge is likewise expected to be argued over two days.
Monday’s Supreme Court announcement that it would review the health care law was greeted with praise by both the law’s supporters and opponents. That’s because the one thing everyone wants right now when it comes to this law is certainty.
Both states and businesses that are planning for big changes starting in 2014 want to know if those changes are going to happen, and to what extent. Business and government are spending money now and want to make sure that money’s not wasted.
Indeed, even the 26 states suing to have the law struck down are hedging their bets. Only four states have actually turned down all federal money to plan for the changes that are scheduled to take place.
While the odds are still that the court will not strike down the law in its entirely, insurance companies are quite panicked about the possibility that the mandate could be ruled unconstitutional, but other parts of the law requiring insurance companies to insure people with pre-existing conditions would be upheld.
Those two have been considered inextricably linked, particularly by the insurance industry, which says it can’t afford to cover sick people if healthy people don’t also have to sign up for insurance.