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On Monday March 26th, almost exactly two years after its enactment on March 23, 2010, the United States Supreme Court will begin the first of three days of oral arguments relating to the health care reform law, the Patient Protection and Affordable Care Act of 2010 (“PPACA”). The Supreme Court agreed to hear six hours of arguments on four issues raised in connection with three cases. The outcome of these arguments could drastically alter the health care reform law, minimally alter it, or delay any decision for the time being.

 The first 90 minutes of argument are scheduled for Dept. H&HS v. Florida relating to the so‑called anti-injunction provision of the Internal Revenue Code, which prevents lawsuits that ask a court to restrain the collection of a tax until the tax is actually being collected. A special attorney was appointed by the Supreme Court to argue that the anti-injunction provision applies since neither the federal government nor the opponents are arguing that it does apply.  A “shared responsibility payment” is scheduled to be imposed in 2015 upon individuals who do not obtain health insurance in 2014. The question then becomes, is this shared responsibility payment a tax? If so, it would not be appropriate for the Court to issue a decision on the requirement that individuals obtain health insurance coverage (the so‑called individual mandate) until the tax is actually being collected (i.e., 2015).

The second day will have a two hour argument on the individual mandate. The issue boils down to whether the federal government is permitted to enact an individual health care mandate under the Constitution. Opponents will argue that the federal government lacks the power to force individuals to purchase health insurance. Proponents will argue that it is within the federal government’s power under the commerce clause of the Constitution to pass laws relating to interstate commercial activity. Proponents also argue that the federal government has the power under the necessary and proper and taxing power provisions of the Constitution.

On the third and final day, the Supreme Court will hear arguments on two issues. First, Nat. Fed. Indep. Business v. Sebelius, Sec. of H&HS will be heard for 90 minutes regarding the ability to sever the individual mandate from the remainder of the law if the individual mandate were to be found unconstitutional. The federal government will argue that if the individual mandate is unconstitutional only that provision and the guaranteed-issue provision requiring insurers to issue policies to customers no matter the individuals health status should be struck down. Opponents will argue that without the individual mandate, Congress would never have passed any health reform and therefore the entire law should be struck down if the individual mandate is unconstitutional.

The second argument of the final day will address an issue from Florida v. Dept. of H&HS regarding the ability of the federal government to require states to expand Medicaid eligibility. The opponents will argue that the required expansion violates the Tenth Amendment by impinging upon the individual states’ right to sovereignty.

After the oral arguments in March, it may be some time before the Supreme Court issues any opinions. We will continue to post on these legal challenges to health care reform as new developments occur.


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