The Supreme Court’s 2011-12 Term is Now in Session

Is PPACA on the docket?

In a move that many will read as a sign of confidence, the Obama administration chose not to ask a federal appeals court for further review of a ruling striking down the centerpiece of the president’s sweeping healthcare overhaul—the mandate that individuals must purchase health insurance if they have none. The decision makes it more likely that the U.S. Supreme Court will hear the case during the court’s current term, and will render its verdict on the law in the midst of the 2012 presidential campaign.

In an August ruling, a divided three-judge panel of the Atlanta-based 11th Circuit Court of Appeals concluded that Congress overstepped its authority when it passed the individual mandate provision that requires individuals to purchase health insurance. The suit at the center of the controversy–Florida v. HHS–was brought forth by 26 states and the National Federation of Independent Businesses.

The Supreme Court has great discretion regarding when and how to accept a case, so the real question now is timing, which has political as well as legal ramifications. Under the court’s normal procedures, it must accept a case by January in order to render a decision by the traditional conclusion of the term at the end of June. Meanwhile, the key ingredients for making a case worthy of the court’s prompt attention appear to be present.

Even if the justices hear the healthcare reform case this term, it doesn’t necessarily follow that they will rule on whether it’s constitutional or not. The high court will have a full menu of options at their disposal when resolving this case; a majority could uphold the law, strike down the mandate, void other parts of the measure, and so on. 

As an alternative, the justices could adopt the approach recently taken by one of the appeals courts, and may conclude that the law shouldn’t be reviewed until the first penalties are assessed. This “out,” called the Anti-Injunction Act (AIA), would require Americans to pay a tax before allowed to challenge the mandate in court. Such a tax could be a major factor in the pending legal challenge surrounding the individual mandate, since people without healthcare coverage would have to pay a penalty. Either way, the mandate doesn’t go into effect until 2014; if the court determines that the AIA applies, no final verdict on the issue would be expected until approximately 2017.

Ultimately, the provision’s fate before the nine-member court (which is closely divided between a conservative majority and four liberals) could come down to two Republican appointees–Chief Justice John Roberts and Justice Anthony Kennedy.

NOTE:  Shortly after the Dept. of Justice asked the Supreme Court to take up the healthcare reform lawsuit brought by 26 states (above), Virginia Attorney General Ken Cuccinelli asked the court to reverse a previous ruling, to decide whether his state can challenge the federal healthcare reform law as well. Virginia’s suit is based on a state law that allows residents to forego health insurance. A handful of other states have passed or are considering passing similar legislation.

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