The justices will take their first look at five of the six petitions during their Nov. 10 conference. And if, as expected, they agree to hear arguments over the Obama Administration’s signature domestic policy success — the Patient Protection and Affordable Care act– brief writing could rev up as soon as the Monday after the conference.
Robert Muise said Nov. 10 could be his lucky day. Muise is counsel of record in Thomas More Law Center v. Obama, the first petition filed in the high court. Muise, who served as a Marine infantry officer, chuckled that the date is the birthday of the U.S. Marine Corps.
But, he added, “Looking at all of these petitions, I’m realistic. The Florida case (filed by the Obama Administration) has a lot of traction for a lot of reasons. The 11th Circuit struck down the individual mandate provision, and there is also a counter petition on behalf of the states.”
Although Muise lost his Commerce Clause challenge to the individual mandate — the law’s minimum essential healthcare coverage requirement — and raises it again in his petition, he hopes a second question in his petition might stand out for the justices: whether the individual mandate is unconstitutional as applied to private individuals without health insurance.
“We represent private individuals without health insurance and that aspect of it is the unique part we can bring to the Court,” he said. “We hope it will draw the justices’ attention and we might be able to argue that aspect of the case.”
Not surprisingly, there are a number of lawyers besides Muise hoping they get the opportunity to stand up at the lectern in what may be the blockbuster case of the current term. Aside from Muise, who is a senior counsel with the Ann Arbor, Mich.-based Thomas More Center, the lineup of counsel of record on the petitions includes:
* Michael Carvin of Jones Day: National Federation of Independent Business v. Sebelius
* Solicitor General Donald Verrilli Jr.: Department of Health & Human Services v. Florida
* Paul Clement of Bancroft: Florida v. Department of Health & Human Services
* Virginia Solicitor General E. Duncan Getchell Jr.: Commonwealth of Virginia v. Sebelius (not ready for conference)
* Mathew Staver of Liberty Counsel in Maitland, Fla.: Liberty University v. Geithner.
The petitions pose many of the same questions for the justices. The core question is whether the individual mandate is a valid exercise of Congress’ commerce clause and necessary and proper clause powers or of Congress’ taxing power.
They also ask: whether federal courts have jurisdiction to hear the challenge to the individual mandate or are they barred by the Anti-Injunction Act; whether expanded Medicaid coverage unconstitutionally “commandeers” the states to implement a federal program; whether the law’s employer mandates are unconstitutional as applied to state governments and private employers, and whether the act’s provisions are severable.
Health care scholar Timothy Jost of Washington & Lee University School of Law, who has been closely following the litigation, said the justices will grant review in Department of Health & Human Services v. Florida because the 11th Circuit was the only appellate court to strike down the law of the three that reviewed it. The challenge was originally brought by Republican state attorneys general from 26 states.
“They will certainly take the minimum coverage appeal from the 11th Circuit, but to decide that, they’re going to have to decide whether somebody has standing to raise the question — be it the National Federation of Independent Business, individual plaintiffs or the states,” he said.
The justices will have to confront the Anti-Injunction Act question which the 4th Circuit panel in Liberty University v. Geithner said deprives federal courts of jurisdiction to hear the challenge, he added. If the Court finds it does have jurisdiction and subsequently decides that the individual mandate is unconstitutional, “They will have to decide to what extent it is severable,” he said.
Yost and others predict the Court will not take up the Medicaid expansion question because there is no circuit split. And it also will ignore questions concerning the act’s application to state government and private employers. “Unless the Court decides it is time now to reverse the New Deal, the federal government has been regulating employers for a very long time,” said Jost.
Amicus briefs on the cert petitions continue to be filed. They represent the following parties: U.S. Chamber of Commerce, Pacific Legal Foundation, Mountain States Legal Foundation, Center for Constitutional Jurisprudence, tax scholars Mortimer Caplan and Sheldon Cohen, HR Policy Association, Landmark Legal Foundation, America’s Health Insurance Plans, American Hospital Association, The California Endowment, Association of American Physicians and Surgeons, the American Center for Law & Justice with 105 members of Congress, and the Family Research Council along with 30 members of the U.S. House of Representatives.
If the Court does grant review, be prepared for an amicus tsunami.
Marcia Coyle can be contacted at email@example.com.