Correction and Expansion/Health Care’s Day in Court

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It has been brought to my attention that the statement made yesterday about parts of the Patient Protection and Affordable Care Act of 2009 remaining in place even if the mandate is struck down by the Supreme Court is not technically accurate.  On Monday, arguments will be heard regarding a legal technicality stemming from a Federal Law on the books called the Anti-Injunction Law which states that courts cannot hear challenges to new tax matters until the tax is actually in force. If arguments in favor of this technicality prevail, it simply delays court actions for two more years until that provision of the Act takes effect. Most sources I can find do not expect the Anti-Injuction argument to prevail.

On Wednesday, there will be arguments about the legality of the rest of the Health Care Reform Law, if the mandate is found to be unconstitutional. Arguments will be made against throwing out the rest of the law, of course. The government will argue that only two other issues, related to expanded coverage, would have to be pulled. A third group will argue that the entire rest of the law should stand, including these two provisions. Remember this is again a constitutional argument. The court must find that other aspects of the law are also in violation. This is a harder sell and would require the court to go farther afield than it usually likes to roam in addressing challenges to constitutionality.

In the afternoon on Wednesday at a special session, arguments about the Federal government getting too far into state Medicaid programs will be heard. Most experts suggest this will be a loser because the Federal government by virtue of its funding power has already demonstrated its rights to affect state programs.

Remember this is as much an electioneering exercise as a constitutionality-legal one. You can expect a fair amount of political theater to surround this hearing. You may in fact get sick of the whole thing and want to return to March Madness before it is over. Lindsay Lohan’s problems may seem like welcomed relief. The stakes are high for all concerned, with implications for the November elections. Some veteran court observers are even reporting that Chief Justice Roberts is likely worrying about the effects of a 5-4 split decision on the matter, based on fallout from the Concerned Citizens ruling. Stay informed and stay tuned!

Tom Godfrey

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