The Affordable Care Act goes before the Supreme Court this week, putting President Obama's signature legislative achievement to the Constitutional test. It may be the most highly anticipated and most closely watched oral arguments to come before the court in a generation — those hoping to get a coveted seat in the gallery have been camped out since Friday — as the outcome will not only decide the fate of health care in this country for years to come, but the final decision could potentially swing the 2012 election. So what exactly is going to happen?
The case: No: 11-11021, Department of Health and Human Services, et al., vs. Florida, et al. Twenty-six states, along with several private interests groups, have sued the federal government claiming the ACA is unconstitutional on a few different grounds. The Court, with the blessing of the Obama Administration that is defending the law, have agreed to consolidate all the challenges into one case so that all the major legal questions can be decided quickly and decisively. The court will hold six hours of arguments over the next three days and then issue a ruling some time this summer.
The hearings: Lawyers for the government, the plaintiffs, and other "friends of the court" will stand before the Justices who will pepper them with questions intended to dissect every inch of their arguments. Each lawyer will be given 30-60 minutes to argue their case on each particular topic, though any Justice can interrupt at any time to ask a question. It's a particularly difficult and pressure-packed form of lawyering that severely tests the combatants' knowledge, stamina, and ability to think on one's feet.
The media: Supreme Court arguments are not videotaped and audio recordings are usually withheld from the media until well after the cases are argued. However, given the intense interest, Chief Justice John Roberts has agreed to allows the audio version of this case to be released on the Supreme Court website at the end of each day, though only those in the courtroom will get to hear the arguments live and reporters will not be live blogging/tweeting from the inside. The courtroom holds about 400 people, but only about 60 seats are given to the public. The rest go to other lawyers, Supreme Court reporters, and government figures with ties to the case.
The lawyers: The two main protagonists will be Solicitor General Donald Verrilli Jr., who will defend on behalf of the government, and Paul Clement, a former Solicitor General himself who has argued more cases before the court (53) than any other lawyer this century, who will be representing the states. Those two will do the bulk of the arguing, but other lawyers representing outside interests will also get a chance to speak.
The issues: Each day will tackle a different constitutional question related to the law:
- Monday will be a 90-minute hearing on whether the law can even be challenged at this point in time. Technically, tax laws can not be challenged until after the tax has actually gone into effect and since the key provisions of the ACA don't kick in until 2014, it could be argued that the states must wait until then to launch a legal challenge. One appeals court ruled that they do need to wait, however, since even the government wants this case to be heard as soon as possible (as do the Justices) it seems unlikely that the court will throw the case out on those grounds.
- On Tuesday, two hours will be set aside for what is the most important facet of the case: Is the individual mandate allowed under the Commerce Clause? Verrilli gets one hour to defend the mandate, then Clement and another lawyer (Michael Carvin, representing the private parties) will each get 30 minutes to argue against it.
- Wednesday will get into more technical provisions. The first part of the day will be about "severability," the idea that the mandate could be ruled unconstitutional, but the rest of the law could still stand. Finally, the states will also argue that Congress illegally expanded Medicated, forcing states to accept the new rules or be dropped from the program entirely. This is one of the few specific provisions in the law that the court will actually rule on.
The ruling: Justices can take anywhere from a few weeks to a few months to issue a verdict, though most expect an answer on this case in early-to-mid summer, probably before the presidential nominating conventions. No one knows how they will rule, of course, but as Slate's legal analyst Dahlia Lithwick writes, this case is about more than just the law. It would be foolish to think that the Justices are not aware of, or not interested in, the politics at stake. Democrats appear supremely confident that the law will stand up legally (hence the push to have it reviewed quickly), but that would not prevent the Courts more conservative members from delivering a rebuke to the President for what they believe is an overreach of his (and Congress') power. A win could energize opponents seeking to overthrow the President in November. A loss in the Court would undermine Barack Obama's entire first term just as his re-election campaign gets into full swing, but could also push liberals to want to see changes made to the makeup of the Court. No one can say for certain how the case will end, or how that ending will change the landscape for 2012.
Whatever the final ruling it will have a profound effect on the politics and economy of the United States for years, perhaps decades to come. So your next three days should be pretty interesting.