The Oakland Press Blogs: The Law Blogger: SCOTUS' Judicial Review of Federal Health Care Legislation

This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation. Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic. Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition. For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law. Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers. For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

 The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

 Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

 Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

 Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court. At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note: although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote. No one but the Justices themselves attend these case conferences. Also, leaks among the law clerks and court staffers are exceedingly rare. We will all have to stay tuned.