The biggest Supreme Court case since Bush v. Gore began oral arguments yesterday morning. Starting a little after 10 a.m. Monday, Chief Justice John Roberts and his Associate Justices opened the floor to the case that will determine the fate of Barack Obama's Patient Protection and Affordable Care Act (ACA), Department of Health and Human Services v. Florida. Like Bush v. Gore, this case is inseparable from both its politicized ascendance through the courts and its potential to sway the November election.
This case is notable in other ways too. It will feature the Supreme Court's longest oral argumentation in 45 years. Unlike past cases where all proceedings are withheld for a long while, audio clips of the proceedings will be available at the end of each day in Court. As 60 people from the general public are allowed entry into the Court gallery, some folks have camped outside since Friday. Protesters of all kinds are drawn to the Court for this case, including the perplexing presence of Republican presidential candidate Rick Santorum.
At issue are a panoply of legal questions. Over the course of three days the Court will listen to (and more often cut off) the lawyers presenting oral arguments on whether the Court should even take up the challenge (Monday), whether the infamous individual mandate is unconstitutional (Tuesday), whether the individual mandate can be severed from the legislation (Wednesday), and a handful of technical provisions (also Wednesday). Once oral argumentation is over, the Court may take anywhere from a few weeks to a few months to arrive at a decision.
Yesterday the Court began with Counsel Robert Long, who argued that the Anti-Injunction Act requires the Court to dismiss the challenge on the basis of its "Pay Now, Litigate Later" language. The argument here is that the Court ought not rule on legislation if the challenged component of the legislation in question has yet to take effect. This refers to the penalty of the Affordable Care Act. When it fully comes into effect in 2014, individuals who refuse to purchase insurance face a monetary penalty. According to Long, so long as it's not 2014, so too should there be no interest from the highest Court in the land.
The Justices would have none of that. Early on Justice Scalia asked how the ACA could be within the Anti-Junction Act's area of effect if the former charges a penalty and the latter specifically refers to revenue-raising taxes. Justices Sotomayor, Kagan, Ginsberg, and Breyer agreed with similarly incisive (seemingly rhetorical) questions. At one point, Justice Kagan outright asked Counsel Long whether he was "trying to rewrite the statute in a way."
None of yesterday's proceedings were terribly juicy. At the outset of the case, we already knew the challengers (represented primarily by the state of Florida) wanted the case to proceed. We also knew that the Obama administration was pushing for a decision well in advance of either the 2014 implementation or the November 2012 election. Finally, one could make the argument that the Court itself implicitly signaled a willingness to proceed by working with the Obama Administration to consolidate the challenges to the ACA into one case, an act that would make the whole endeavor easier to take up. So it's unsurprising that the Court did indeed take it up.
Today we'll be moving into what is likely to be the main attraction of the case, the constitutionality of the individual mandate.
Rajiv Narayan is the Senior Fellow for Health Care Policy at the Roosevelt Institute | Campus Network and a graduating senior at the University of California, Davis.