SCOTUS sets Obamacare Briefing Schedule
Adam Freedman ·
Dec 9, 2011 at 1:50pm
The Obamacare showdown is coming! The Supreme Court has set a briefing schedule, from January 6 through March 13. They haven’t set a date for oral argument yet, but according to Scotusblog, “the briefing schedule suggests that those hearings will occur in the week of March 26.” It’s actually a consolidated appeal of three separate cases, with two days of oral argument planned. The briefing schedule is here. The lawyers’ letter proposing a schedule is here.
The Court is dividing the whole thing up into four separate questions:
- The individual mandate. This, of course, is the big enchilada. On this question we will discover whether the Supreme Court is willing to enforce any limit on the federal government’s power.
- “Severability,” i.e., if the individual mandate falls, can the rest of the law survive. (Here’s a hint: no).
- The law’s huge expansion of Medicaid. This issue has not received sufficient attention. I will post more about this later, but Obamacare is a prime example of federal coercion of states, contrary to the Tenth Amendment. In theory, States are free to refuse to expand their Medicaid programs. But if they do so, they lose ALL of the Medicaid dollars that their State is otherwise entitled to.
- The Anti-Injunction Act. This is a relatively dry one, but important. There’s a serious question about whether this federal law requires that all the Obamacare lawsuits must wait until 2014 when the mandate, and the related penalty tax, take effect. In my view, waiting until 2014 increases the likelihood that the law will be upheld. By that time it will be entrenched, with billions poured into it, and the Justices will be more reluctant to unscramble the egg.
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Comments :
May '10
Re: SCOTUS sets Obamacare Briefing Schedule
Oh boy. Just thinking about this showdown makes my acid reflux kick in.
Re: SCOTUS sets Obamacare Briefing Schedule
Thanks, Adam. This is informative.
May '10
Re: SCOTUS sets Obamacare Briefing Schedule
Am I going too far if I say this will be the most important Supreme Court opinion since 1937? The publishers of Con Law casebooks are going to make out like bandits after this opinion.