Supreme Court Update: Order List 11/14/11

November 15, 2011 Supreme Court Update

Greetings, Court fans!

Unless you were assiduously avoiding all forms of media yesterday, you likely heard that the Court has agreed to hear a series of cases challenging the health care law, a.k.a. the Affordable Care Act.

The Court structured the cert grants in its own fashion, picking and choosing how it wanted to hear the arguments – which will last a total of five and a half hours.

Two of those hours will be spent addressing the question presented in Department of Health & Human Services v. Florida (11-398): "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision," which requires that almost all individuals have health insurance. The Court will spend another hour of argument in that case on whether respondents' challenge to the individual insurance mandate "is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a)."

Ninety minutes will be dedicated to a question presented by both National Federation of Independent Business v. Sebelius (11-393), and Florida v. Department of Health & Human Services (11-400). The cases have been consolidated for argument and will address whether the individual insurance mandate exceeds Congress's enumerated powers and, if so, whether the individual mandate can be severed from the remainder of the Act. Clearly, the focus here will be on whether the entire law must fall if the Court finds the individual mandate unconstitutional.

The final hour of argument will address Question 1 in the cert petition in Florida v. Department of Health and Human Services: "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress's spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?"

The Court also granted cert in two other, less hot-button, cases:

Astrue v. Capato (11-159), which asks whether "a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act"; and

Armour v. Indianapolis (11-161), which asks whether "the Equal Protection Clause precludes a local taxing authority from refusing to refund payments made by those who have paid their assessments in full, while forgiving the obligations of identically situated taxpayers who chose to pay over a multi-year installment plan."

The health care law cases are on track to be argued in the spring and decided by June, so we'll have a particularly interesting end of Term to look forward to.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400