The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees....So what questions, exactly, will the Court be addressing? The cert-stage briefs are all here, and here's a summary of the questions:
The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)
1. Whether Congress can tell the states that they have to expand how many people are covered by Medicaid, and force them to pay for the expansion, by threatening to withhold billions in federal funding unless States comply.
2. Whether the mandate is a tax and, as such, can't be challenged in Court until it's actually imposed in 2014 or so.
3. Whether Congress had the power under Article I of the Constitution to enact the mandate.
4. And if it didn't, what other parts of the Act are so inextricably intertwined with it that they, too must go.
The Court did not explicitly ask questions regarding whether all of the parties had standing to sue; Denniston suggests this is because "undoubtedly some of those involved in the business trade group case do have a right to sue against the mandate." Nor did the Court choose to review, as it had been asked, whether it was constitutional for Congress to require large employers in the public and private sectors to provide adequate health insurance coverage to their full-time employees. Nor were any recusals noted by the Justices in their consideration of these cases.
What happens next? Many, many trees die. Within 45 days (Thursday, Dec. 29—so forget about that Christmas vacation), the various Petitioners must file 40 copies of their briefs on the merits; 30 days later, the respondents do the same; and 30 days after that come the reply briefs. Oral argument may be as late as the last two weeks in April, and sometime in the week of June 25, 2012 (I doubt it'll be sooner), the Court will issue its decision.