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Supreme Court Takes Up Obamacare
Posted By Paul J. Larkin, Jr. On November 14, 2011 @ 11:36 am In Rule of Law | 6 Comments
The Supreme Court today granted review in related cases that raise the question whether Congress had the power to adopt the Patient Protection and Affordable Care Act – known colloquially as ObamaCare – health regulatory scheme and, if not, what components of that law must fall and can survive.
The Court granted the petitions for writs of certiorari in three separate cases – one filed by the National Federation of Independent Businesses (No. 11-393), one filed by the states No. 11-400), and one filed by the federal government (No. 11-398). The specific questions that the Court has decided to review are listed below. In sum, the Court will decide two questions: (1) whether Congress has the authority under the Commerce or Spending Clauses of the Constitution to adopt ObamaCare, and (2) whether the federal Tax Injunction Act bars suits by private parties or the states to challenge ObamaCare as being unconstitutional. The Court decided not to consider the states’ argument that, as applied to state employees, ObamaCare violated the Tenth Amendment.
It is a bit unclear from its orders today, but the Court also set aside either 4 ½ or 5 ½ hours for oral argument, which is surprising even for those who thought the Court would likely double the normal time from one to two hours, which the Court does about once or twice a year.
The questions that the Court has decided to review should allow the Court to resolve the constitutionality of ObamaCare. The time that the Court has set aside for oral argument is an unheard of amount of time these days. The Court likely will hear oral argument in March, which would allow the Court 3-4 months to decide the case.
Ironically, the Court also may have had its own “Oops!” moment this morning. The Court twice noted that it granted the states’ certiorari petition, each time saying that review was granted to only one question, but disagreeing as to what question that is. One time the Court said that the grant was limited to Question 1, while the second notation said that the grant was limited to Question 3. Questions 1 and 3 are different. Let’s hope the Court takes its time from here on and decides the issues the way the Constitution requires.
Here are the precise questions accepted or added by the Court for consideration early next year:
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