This morning, as expected, the Supreme Court agreed to take up Obamacare. What was unexpected — and unprecedented in modern times — is that it set aside five‐and‐a‐half hours for the argument. Here are the issues the Court will decide:
- Whether Congress has the power to enact the individual mandate. — 2 hours
- Whether the challenge to the individual mandate is barred by the Anti‐Injunction Act. — 1 hour
- Whether and to what extent the individual mandate, if unconstitutional, is severable from the rest of the Act. — 90 minutes
- Whether the new conditions on all federal Medicaid funding (expanding eligibility, greater coverage, etc.) constitute an unconstitutional coercion of the states. — 1 hour
In addition to the length of argument, which we can expect to be heard over multiple days in March or April, perhaps the biggest surprise is the Court’s decision to review that fourth issue. There is no circuit split here — in large part because 26 states are already in this one suit — and no judge has yet voted to uphold what also be described as a claim that the federal government is “commandeering” the states to do its bidding. The Court probably took the case precisely because so many states have brought it; that former solicitor general Paul Clement is their lawyer also doesn’t hurt. As a practical matter, this could be a bigger deal than the individual mandate because, while Congress had never before tried an economic mandate, it certainly does attach plenty of strings to the grants it gives states — and the spending power is thought to be even broader than the power to regulate commerce.
In any event, the Supreme Court has now set the stage for the most significant case since Roe v. Wade. Indeed, this litigation implicates the future of the Republic as Roe never did. On both the individual‐mandate and Medicaid‐coercion issues, the Court will decide whether the Constitution’s structure — federalism and enumeration of powers — is judicially enforceable or whether Congress is the sole judge of its own authority. In other words, do we have a government of laws or men?