Justices Have Five Petitions in Hands


By Hadley Heath

This Wednesday, clerks distributed copies of five cert petitions to the Supreme Court Justices.

The five petitions are those filed by:

  • Thomas More Law Center
  • Private plaintiff National Federation of Independent Business (in HHS v. Florida)
  • 26 states (in HHS v. Florida)
  • Department of Justice (in HHS v. FLorida)
  • Liberty University

The Commonwealth of Virginia has also filed a cert petition, but briefing is not complete in this case until the United States files a response, so this petition was not among the five distributed to Justices this week.

Lyle Dennison has helpful insight on the Court's predicted actions on SCOTUS blog.  He also provides a brief, helpful analysis of the issues the Court is likely to consider.  Here's an excerpt:

Whichever petitions might be chosen for review, it now seems likely that the Court will agree to review these three constitutional questions:

1. Is the ACA’s requirement that virtually every adult American obtain health insurance by the year 2014 unconstitutional, as beyond Congress’s power, either under the Constitution’s Commerce Clause or its taxing power under the General Welfare Clause?

2. Does a federal law, the Anti-Injunction Act, bar any challenges to the insurance-purchase mandate, on the theory that it is part of federal tax law, which cannot be blocked before it goes into operation?   (A separate part of that question is whether the Act’s ban on pre-enforcement challenges to tax laws does not apply to states as challengers.)

3. If the insurance mandate is struck down, must all of the ACA be nullified, on the ground that that provision is critical to the overall law’s operation?  (If the entire law does not fall with the demise of the mandate, a question would then arise whether specific parts cannot survive.)

In response to the third of these questions, some amicus briefs from the U.S. Chamber of Commerce and AHIP (America's Health Insurance Plans - an association of health insurers) have encouraged the Court not to strike the individual mandate alone.  These business groups hope the court will strike some regulations to the health insurance industry along with the mandate, not unlike the district ruling in Goudy-Bachman.

But let's not get ahead of ourselves - the Court hasn't even decided which case they might take on.  They will conference November 10 to discuss just that, and we can expect that, at least by November 14, after the holiday, we can know what the Court's next steps will be.


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