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Supreme Court Says It Will Hear Challenge to Health Law
By David Stout | November 14, 2021 11:08 am

The U.S. Supreme Court said on Monday that it will hear arguments on the validity of President Barack Obama’s health care law, setting the stage for a battle with enormous constitutional, social and political implications just as the 2012 election season is heating up.

To no one’s surprise, the justices announced their intent to hear various challenges to the 2010 law, probably by March, with a decision expected by the time the court adjourns in June, as Adam Liptak reported for The New York Times.

“Monday’s order answered many questions about just how the case would proceed,” Liptak notes. “Indeed, it offered a road map toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.”

The court could hardly have avoided taking the case, since it involves conflicting rulings among the various federal circuits on an issue of high importance. The justices agreed to hear an appeal from a ruling by the U.S. Court of Appeals for the 11th Circuit, in Atlanta.

The 11th Circuit, as Liptak noted, is the only appeals court so far to have struck down the central and most controversial feature of the law: that people purchase health insurance or face a penalty through the so-called individual mandate. A divided three-judge panel of the 11th Circuit said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes,” Liptak recalled.

But even though the high court agreed to take only the 11th Circuit case, that case offers the justices an avenue to review various aspects of the law. Moreover, the high court’s series of orders announcing that they will take the case said the justices have reserved five and a half hours for arguments, an extraordinarily large block of time.

The Roberts court is often described generally as “conservative” and “pro-business.” But it is risky to predict how jurists will rule.  Only last week, the U.S. Court of Appeals for the District of Columbia Circuit upheld the health care law (see Main Justice’s report), and one judge voting in favor, Laurence Silberman, was appointed to the bench by President Ronald Reagan.  And last June, a panel of the Cincinnati-based 6th Circuit upheld the law, with one of the judges voting in favor, Jeffrey Sutton, having solid “conservative” credentials, since he once clerked for Justice Antonin Scalia.

Political as well as legal questions have marked the debate over the health law. Some Republicans have asserted that Justice Elena Kagan should not take part in the case because she defended the law as Obama’s Solicitor General, as Main Justice has reported.

The present Solicitor General, Donald B. Verrilli Jr., was sworn in last June. He served in the Justice Department as an Associate Deputy Attorney General before becoming a senior White House counsel.  Years ago, he was a clerk for Justice William J. Brennan Jr.

And Paul D. Clement, Solicitor General under President George W. Bush, has been active in the health care battle. Indeed, he won the 11th Circuit case cited above, and he predicted recently that the justices would take the case (see Main Justice’s report).

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was pleased that the high court will hear arguments on the law, formally the Affordable Care Act. “Most appellate courts have upheld the constitutionality of this historic law, and when the Senate voted to pass the Affordable Care Act, it also voted specifically on its constitutionality, Leahy said. “I hope the Supreme Court will defer to Congress in addressing this national problem.”

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WHO'S ACCOUNTABLE? HEALTH CARE INDUSTRY PROSECUTIONS AND THE MOUNTING CONTROVERSY OVER FEDERAL TACTICS.This Main Justice public policy discussion was held Oct. 18, 2011 in the Rayburn House Office Building on Capitol Hill. Panelists: Joan McPhee of Ropes & Gray LLP; Vicki Girard, Georgetown University Law Center professor; Jeff Bucholtz of King & Spalding LLP; and Peter Urbanowicz, Alvarez & Marsal. Moderator: Mary Jacoby, Editor-in-Chief of Main Justice.

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