An hour ago, the U.S. Supreme Court granted certiorari in three separate cases on appeal from the Eleventh Circuit on the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. See November 14, 2011 Order List (PDF), Department of Health and Human Services, et al., v. Florida, et al. (Case Nos. 11-393, 11-398, and 11-400). The High Court has set aside a whopping 5 1/2 hours for oral argument on the various issues it granted, although it did not agree to hear all of the issues. It also did not agree to hear the plaintiffs’ health care challenge appeal from the Sixth Circuit in Thomas More Law Center, et al. v. Obama, et al. (U.S. Sup. Ct., Case No. 11-117).
The Court’s decision not to grant review in the Thomas More case is unsurprising. As I explained over a month ago in my interviews for LexBlog TV and the Voice of Russia international radio network, the Eleventh Circuit case is a better vehicle for Supreme Court review than the Sixth Circuit’s Thomas More case given all of the myriad issues raised in the Eleventh Circuit case.
The Supreme Court will devote two hours to the critical question of whether the individual mandate is constitutional. It will devote an hour to the question of whether the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars the plaintiffs’ challenge to the health care statute. Ninety minutes will be devoted to the question of severability and whether any unconstitutional portions of the health care statute are severable from other parts of the statute. Finally, the Court will hear argument on the constitutionality of the Medicaid expansion.
Although the Supreme Court did not agree to hear the plaintiffs’ appeal in the Thomas More case, the Court will certainly review the three separate opinions written by Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), in deciding the issues before it.