In a rare move, the Supreme Court has allocated 6 hours of oral argument spread over three days to the case of Health and Human Services v. Florida–the constitutional challenge to the Affordable Care Act, commonly called “ObamaCare.” SCOTUS will hear arguments from Monday March 26 to Wednesday March 28.

Day 1: The Anti-Injunction Act

The first day contained 90 minutes of oral argument on the issue of whether the Anti-Injunction Act prevents the court from ruling on the mandate until the provision goes into effect in 2015. Glossing over the technical details, the AIA is a century-old law prohibiting challenges to tax laws until taxes are collected.

The real significance of this part of the trial is that it will probably determine if the court will treat the fine levied against individuals for failure to purchase health insurance as a “tax” or a “penalty,” and this will determine if the individual mandate falls under Congress’s taxing power. If the court agrees to rule on the case now, as nearly everyone expects it will, the mandate fine could wind up being treated as a penalty, not a tax, and thus will rest solely on Congress’s power under the Commerce Clause.

Prediction: the Supreme Court will rule on the case now, as the mandate will inevitably go into effect. The court will treat the mandate as a penalty, not a tax.

FULL TRANSCRIPT [PDF]

FULL AUDIO RECORDING

Day 2: The Individual Mandate

The second day is arguably the most important day for the case. The court heard argument for two hours on whether the Constitution permits the government to force individuals to purchase a private product, merely as a condition of being a citizen.

The government argued that the Interstate Commerce Clause grants Congress the power to force individuals to purchase a product from a private company or face fines or prison. The challengers argued that the power to compel consumers’ commercial activity (purchasing insurance) is not part of Congress’s power to regulate (or, per Wickard and Raich, prohibit) existing commerce. They further argued that there is no limiting principle to this power that would prevent the government from compelling anyone to do anything it deemed necessary.

Prediction: Originally, I thought that the challengers had no chance of winning this argument, but after Solicitor General Verrilli’s weak performance today, there’s an even chance that the court will rule against the mandate. After some brutal questioning of Verrilli by conservative justices and his fumbling answers, several observers predict the court will rule against the mandate.

FULL TEXT [PDF]

FULL AUDIO RECORDING

Day 3: Severability and Medicaid Mandates on States

The final day featured 90 minutes of argument on whether, and to what extent, the mandate, if unconstitutional, is severable from the rest of the Affordable Care Act. A final hour of argument was afforded to the question of whether the law’s Medicaid mandates on the states are an unconstitutional usurpation of states’ rights.

If the court strikes down the mandate, the challengers argue that the whole law must also go–in a word, that the mandate is not severable from the rest of the law. The government concedes that if the individual mandate is found unconstitutional, the regulations on insurance companies must also go, but that the remainder of the Act’s provisions can be upheld. The court appointed an amicus curiae (friend of the court) to argue the position that the 11th Circuit held, that the mandate could be struck down and the rest of the law, including the insurance regulations, maintained.

The final question is whether the Department of Health and Human Services rules for the funding of states’ Medicaid programs is an unconstitutional imposition on states’ rights. The ACA requires that states enact a number of changes to their Medicaid programs, including expanding coverage and eligibility, or else forfeit all of their Medicaid funding–billions of dollars in budget support for some states. As part of a political deal to keep the projected cost of the ACA down, Congress did not provide any funding for these mandates on the states. The attorneys general for 27 states are suing to block these provisions as unconstitutional burdens imposed on state governments.

Prediction: I originally expected that if the conservative justices strike down the mandate, they would hold the government’s position, striking down the insurance regulations and leaving the remainder of the Act untouched. Some of Justice Scalia’s statements during the severability hearing, however, make me think that the court will not want to wade into deciding what portions of the 2,700 page law must go or be retained. The court typically does not want to get into making those types of policy decisions. While the states have a respectable argument, the court is unlikely to limit congressional discretion over Medicaid funding. The states’ best hope on this count is that the court will strike down the mandate and rule the whole Act unconstitutional.

FULL TEXT [PDF] – NFIB v. SEBELIUS (severability)

FULL AUDIO – NFIB v. SEBELIUS

FULL TEXT [PDF] – FLORIDA v. HHS (States Medicaid rights)

FULL AUDIO – FLORIDA v. HHS

It should be remembered that no ruling can be expected on this law for several months–probably not until at least late summer–and that my predictions (I’m not a lawyer) are likely as wrong everyone else’s. No matter what, I expect the decision to be very close: 5-4 or 6-3 in either direction. Chief Justice Roberts and Justice Kennedy seem to be the wild cards, and their decisions will probably determine the outcome of the case.

Other links:

Debate between The Cato Institute, the Center for American Progress, the Institute for Justice, and Northwestern University.

Reason.tv: Why Obamacare is “the Most Important Case” in 50 Years

Cato’s summary of the case and their briefs to the court on each issue.

Randy Barnett on why the ACA is bad law.

Michael F. Cannon on why the ACA is bad policy.