Supreme Court Gets Ready

Supreme Court Gets Ready

The Temptations may have sung about getting ready first, but the Supremes are actually doing it, at least as far as the constitutional challenge to PPACA is concerned. Since announcing last week that the court will hear NFIB v. Sebelius, the case being brought by both the National Federation of Independent Businesses and 26 states to challenge the health reform law, during 2012, the U.S. Supreme Court has taken a few key steps to prepare.
On Friday, November 18, the court announced the appointment of two attorneys independent from all parties to the case to argue two specific points in the case. H. Bartow Farr was asked to provide oral arguments in support of the 11th Circuit Court of Appeals' ruling that the individual mandate provisions of PPACA can be completely severed from the rest of the law. A second attorney, Robert A. Long, was appointed by the Supreme Court to make the case during oral arguments that the federal Anti-Injunction Act, a tax law that prevents legal action on a tax prior to its effective date, would prevent the court from ruling on the individual mandate’s constitutionality before it goes into effect, since the individual mandate penalties have been construed by some as a tax.
The court has also announced that the unprecedented five and half hours of oral arguments on the case will take place over two consecutive days. Normally, only one hour of oral arguments is allowed on Supreme Court appeal cases. While a timeframe for the oral arguments has not been released, many speculate that they will be heard at the end of March 2012. 
Meanwhile, both sides in this debate have ramped up their calls for Justices Kagan and Thomas to recuse themselves in the case. Conservative activists have been arguing that Kagan should recuse herself for months, since she previously served as President Obama’s Solicitor General. However, Kagan and the Justice Department have long maintained that Kagan was never involved in the development and defense of this case. PPACA supporters have encouraged Justice Thomas to recuse himself, since his wife has lobbied for entities that have opposed the law, and some groups feel this alleged conflict of interest was not disclosed. House Democrats wrote to the U.S. Judicial Conference on Friday urging that the U.S. Attorney General Eric Holder investigate Supreme Court Justice Clarence Thomas in this matter. Meanwhile, Senate Republican leaders sent a letter to Attorney General Holder questioning his assertions about Kagan’s previous involvement in the health law case. 
Not to be outdone, health policy nerds are also preparing for the case. The fine folks at Kaiser Health News have prepared this exciting chart that outlines all of the possible options for the health law, depending on how the Supreme Court rules on the variety of overlapping legal questions raised by the case. The folks at Politico describe it as a “choose your own adventure for health wonks,” and we would have to agree.  
 

http://www.kaiserhealthnews.org/Stories/2011/November/18/supreme-court-health-law-chart-2012.aspx