The U.S. Supreme Court granted cert (PDF) this morning in three cases challenging several key elements of President Barack Obama’s health-care reform law: whether Congress can force Americans to purchase health care; whether all or part of the rest of the law is constitutional if that one provision is not; whether the penalty for not buying health care amounts to a tax; and whether the law’s expansion of Medicaid is a federal infringement on the states’ constitutional rights.
The Court didn’t just grant cert; it granted a full five-and-a-half hours of hearing time, a huge amount by Supreme Court standards. The hearing could stretch over more than one day. According to Lyle Denniston, the indefatigable Court reporter at SCOTUSblog, the total argument time is a modern record, topping campaign-finance reform’s four hours in 2003.
The court’s order ensures that arguments will take place in the case before the 2012 election, probably in March, and makes it very likely they will rule before their 2011-12 session ends in June. The Obama Administration, in pushing to have the case heard before the election, is betting that it will get cover against the consistent GOP attacks on the law’s constitutionality.
There are reasons for them to believe that. The D.C. Court of Appeals’ majority opinion by Judge Laurence Silberman was a body blow to those who argue the individual mandate is unconstitutional. It follows an equally devastating opinion on that subject by former Clarence Thomas clerk Jeffrey Sutton, of the 6th Circuit, who tore the anti-individual mandate arguments apart.
That doesn’t mean the court won’t rule against part or all of Obamacare. The least accountable part of the least accountable branch of the federal government can do pretty much what it wants, and has shown a willingness to do so even in cases that left conservatives cringing over an appearance of political expediency over jurisprudential consistency.
But with conservative stalwarts like Silberman and Sutton on the side of the mandate’s constitutionality, and a Clinton appointee, Frank Hull, one of the few delivering an appeals court defeat for the mandate’s constitutionality, there’s reason to believe Obama will get a win just as the presidential campaign is accelerating next summer.
