ObamaCare and the Supreme Court: What’s Are The Arguments and Briefs Filed?

‘In the last week, the main parties in the health reform lawsuit began filing their opening briefs. Advocacy, consumer and trade groups – including AHIP, America's Health Insurance Plans – weighed in by filing amicus briefs as well.

Oral arguments are scheduled for five and a half hours over three days: March 26-28. The Court will hear arguments about four different issues:





*The constitutionality of the individual mandate.

*The constitutionality of the Medicaid provisions: Are they an illegal commandeering of the states' autonomy?

*Whether the Anti-Injunction Act bars review of the mandate until after 2014: This centers on whether the penalty for not having insurance is a tax, since the Anti-Injunction Act prohibits lawsuits stopping a tax until after the tax goes into effect.

*Which other pieces of the law should fall if the mandate is found to be unconstitutional.

HealthReform GPS has posted a detailed backgrounder on the constitutional issues before the Court and how the lower courts have ruled.

Response petitions, reply briefs and arguments will continue to be filed according to a series of deadlines that extend from now until March 7. These are among the briefs that have been filed with the Court so far:





*A 130-page brief by the Justice Dept., arguing for the mandate. It says that the mandate is needed to break the cycle of cost-shifting that makes health insurance expensive and unaffordable. The administration argues that there are lots of other mandates the federal government has imposed over the years, but the case isn't really about whether Congress can require Americans to buy insurance. It's about whether Congress can regulate the timing and method of payment of health care services.

*A 123-page brief by the 26 states saying that the Medicaid expansion is illegally coercive because states have no real choice in the matter. "No state is exempt from the massive penalty — the loss of the entirety of funding under the single largest grant-in-aid program for the states," the brief says.

*A 169-page brief by the 26 states and the National Federation of Independent Business saying that if the individual mandate is unconstitutional, the rest of the law must be struck down, too.

*An amicus brief by 36 Republican senators, and another filed by the American Center for Law & Justice and signed by about 120 congressional Republicans arguing the same point.

*An amicus brief filed by the American Action Forum and signed by more than 100 economists, including Nobel laureates, also on the issue of severability. It says, "Without the individual mandate, the ACA's reforms, including but not limited to guaranteed issue and community rating, would cause a steep increase in premiums – the opposite of Congress' express intent."

*An amicus brief by AHIP and the Blue Cross Blue Shield Association that argues that if the individual mandate is found to be unconstitutional, the market reforms (for example, guaranteed issue and community rating) must be struck as well.

Meantime, Supreme Court Chief Justice John Roberts defended the Court's ethical standards and Justices Clarence Thomas and Elena Kagan, who continue to be under pressure by some to recuse themselves from the health reform law challenge. "I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Chief Justice Roberts wrote. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process." ‘ - Humana, Humana Connections, 01/12/2012