Reading the Supreme Court’s Grant in the “ObamaCare” Litigation

SCOTUSblog offers full analysis of the Court’s order (PDF) granting certiorari, to which we add only limited points. First, take into consideration the length of the argument — five and a half hours, broken over several days:

The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours.   The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments.   (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.)

Any appellate lawyer will tell you, the length of time for argument provides a reliable indication of not just how important the case is, or its complexity, but how seriously the Court regards the issues at play. As such, the record-setting argument time is properly viewed as bad news for supporters of President Obama’s historic reform. Although, on the flip side, it could just be signalling: even if the Court thought the case was a done deal, for one side or the other, could they really short-change the argument without alienating the losing faction? Especially post-Roe, the modern Court should — and does — often consider its institutional legitimacy in casting its orders. Call it the legacy of a modern Republican Party willing to cynically declare war on a coordinate branch of government, just to preserve its political relevance.

But the grants aren’t without some good news for reform supporters. The Court also took cert as to the jurisdictional question — on whether the individual mandate can actually be overturned before it ever goes into effect. And the Supreme Court also added an issue sua sponte [at its own request]:

Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).

As a threshold matter, note an error in the Court’s order. 26 U.S.C. § 7421(a) refers to the “Tax Anti-Injunction Act”; not the “Anti-Injunction Act,” a statute familiar to federal courts scholars that bars federal actions to restrain a state court proceeding, which is codified at 28 U.S.C. § 2283.  The TIAI operates as part of the jurisdictional mechanic that prevents taxpayers from suing to enjoin a tax: to challenge a potentially illegal tax, instead, prospective litigants must pay the tax, and then sue for a refund. By inserting a TIAI issue, the Court appears to openly contemplate that the individual mandate is best understood as a tax, or something sufficiently similar to trigger the policy concerns bound up in the TIAI. Taking the Court at face value, they could be hinting that the individual mandate is a tax (a position rejected by all the lower courts), separately sustainable under the general welfare clause, and that any suit against it is premature. It’s a quick way for the Court to get the case off their docket, or resolve it on objective principles not bound up in politics. Functionally, the Court would punt on the more serious question of the role of government and the scope of the Commerce Clause. And as we all know, the Court loves to punt.

Regardless, none of this changes this fundamental calculus that this is an easy case, resolved in the reformers’ favor by reference to clear precedent. I’ve just bet one of my lawyer friends $100 that the Court comes out in reformer’s favor, in some fashion, and it’s a good bet.


  1. Regardless, none of this changes this fundamental calculus that this is an easy case, resolved in the reformers’ favor by reference to clear precedent.

    Well, yes, because in a common law system two wrongs do make a right: get it wrong the first time, and it’s a precedent to make repetition correct. And I realize there’s impracticalities to an everything de novo system, but I think the value of revisiting analysis outweighs that.

    And yes, I think commerce clause jurisprudence has been a string of additive wrongs ever since “stream of commerce” and getting rid of intrastate/interstate distinctions. So, basically since the 1890s.

    Actually, if they’d drop the rational basis deference and actually do their job of making the executive argue the actual reason the legislature did what it did, why that’s really necessary and proper for carrying out something within the legislature’s jurisdiction, and why the legislation doesn’t impinge on any numerated or unenumerated (9th Amendment, people!) rights in every case and actually judge that, they might not have to overturn as much of the commerce clause jurisprudence. When post hac hypotheticals, pretexts, and tenuous connections between those and the law’s contents can suffice to uphold legislation, the judiciary’s being derelict in its duty to judge.

    1. To get there, they’d have to overrule Carolene (as to the footnote) and create the Court as some kind of super-legislature, of the type specifically rejected at the founding. And the Ninth Amendment really, really, really isn’t a thing. It’s there to provide an argument for new rights, not to strengthen old ones.

      1. Re 9th being an argument for new rights, exactly. I agree. Hence I said “doesn’t impinge on any … unenumerated … rights”. I realize my writing sometimes doesn’t make a lot of sense without a flowchart… speaking of which, “in every case” modifies “argue”, not “impinge”.

        Re Carolene and super-legislature: yes, overrule the footnote. 9th Amendment coupled with 14th (which applies it to states) means all laws presumptively unconstitutional. And striking down laws not same as legislating. That’s silly socon nonsense about Roe & Lawrence. Telling legislature “nope, can’t do that” is Court’s job: serve as check on legislature.

        1. That’s way too broad of an interpretation of the Ninth Amendment exists. It exists only to prevent anyone from arguing that the rights mentioned in the other eight amendments are the only rights that people have; that it is an exhaustive list. It’s basically a 1789 compromise between the Anti-Federalists who wanted the Bill of Rights as a limit on the federal government, and the Federalists who on the contrary were concerned that such a Bill would actually give the government too much power. That’s all.

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