There are now six distinct petitions for writs of certiorari pending at the Supreme Court relating to the constitutionality of the ACA. These petitions, in turn, ask the Court to grant review on a number of different questions. The likelihood that the Court will actually take up these various questions, however, varies considerably. The point of this post is just to briefly sketch out the likelihood of the Court granting on each of the respective questions.
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1. Question presented: Whether the minimum essential coverage provision (26 U.S.C. 5000A) is a valid exercise of Congress's enumerated powers (either as an exercise of its power to regulate interstate commerce--pursuant to the Commerce Clause alone or in conjunction with the Necessary and Proper Clause--or as an exercise of its taxing power).
Likelihood of grant: 99%
Comment: Again, a lower court (the Eleventh Circuit) has declared a federal statute of enormous significance unconstitutional; there is a clear split of authority in the lower courts; and the United States has asked the Court to grant review. If there is a constellation of factors that guarantees certiorari, this is it.
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2. Question presented: Whether the Anti-Injunction Act (26 U.S.C. 7421) deprives a federal court of jurisdiction to hear a pre-enforcement challenge to the minimum essential coverage provision.
Likelihood of grant: 80%
Comment: There is now a clear, three-circuit split on this question, and the United States has suggested that the Court grant on this issue. Whether the Court formally grants a petition raising this question is largely beside the point, though, as the Court must assure itself of its own subject matter jurisdiction regardless. In other words, if the Court grants in any of the cases, it will have to address this issue regardless.
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3. Question presented: Whether the individual mandate, if it is held unconstitutional, can be severed from the rest of the ACA, or whether other aspects of the Act (such as the prohibition on preexisting condition exclusions), or even the ACA in its entirety, are insevarable and thus should be declared void and unenforceable.
Likelihood of grant: 80%
Comment: Again, it is really just a technicality as to whether the Court formally grants certiorari on this question. If the Court takes the case, and it holds that the minimum coverage provision is unconstitutional, it will have to address its severability from the rest of the Act regardless.
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4. Question presented: Whether the ACA's Medicaid provisions, due to the enormous amount of federal dollars at stake, effectively coerce the states to expand their coverage and thus unconstitutionally "commandeer" the states to implement a federal legislative program.
Likelihood of grant: 30%
Comment: There is no split of authority on this question. It is only raised in the states' petition in Florida v. HHS. The United States prevailed on this issue below, so no federal statute has been declared unconstitutional. And the issue of when a federal spending condition becomes so "coercive" as to amount to "compulsion" is an extremely dicey one, which the justices have effectively avoided for the last thirty years. No doubt, it is a question of enormous importance. But I am not sure that that fact alone is enough for the Court to be interested in opening up this can of worms. Perhaps, but I would be slightly surprised.
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5. Question presented: Whether the ACA's employer mandates are unconstitutional as applied to state governments.
Likelihood of grant: 15%
Comment: As the states' cert petition in Florida v. HHS essentially concedes, holding in favor of the states on this question would require the Court to overrule (or at least substantially modify) its decision in Garcia v. San Antonio Metropolitan Transit Authority. Garcia (as later reaffirmed in New York and Printz) held that Congress can impose "generally applicable" legal obligations on the states--obligations that apply to the states no differently than any other employers across the economy. That is what the ACA does with respect to employers and their obligations to provide health insurance (or replacement subsidies) to their employees. The states would like the Court to address whether, as applied to the state governments, these mandates amount to an unconstitutional incursion on state autonomy. Given that there is no split, and that this question essentially asks the justices to overrule well entrenched precedent, the likelihood of the Court taking up the question seems relatively small.
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6. Question presented: Whether the ACA's employer mandates are unconstitutional as applied to private employers.
Likelihood of grant: 5%
Comment: This question is presented only in the Liberty University petition. And it would not seem to have much of a chance. Almost everyone seems to think that regulating employers' provision of health insurance--actors who are plainly engaged in commercial activity--is well within Congress's commerce power. Finding in favor of Liberty here would require a substantial reexamination of the Court's post-1937 Commerce Clause jurisprudence. Justice Thomas might be interested, but I doubt any of the other eight are.
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7. Question presented: Whether a state that enacts a law akin to Virginia's Health Care Freedom Act has standing to challenge the ACA's individual mandate on the ground that the federal law conflicts with state law.
Likelihood of grant: 3%
Comment: The question of when, exactly, a state has standing to resolve whether one of its laws is preempted by federal law is an interesting and rather complicated one. At one point in this saga, it appeared that the Court might have to take up this question to reach the merits of the ACA's constitutionality. But that is no longer the case; the constitutionality of the minimum coverage provision is squarely presented in cases other than Virginia v. Sebelius, where private plaintiffs have a much clearer claim to standing. This issue, then, is largely beside the point, at least in this litigation. There is no need for the Court to address it here and now, and it raises lots of thorny issues under both Article III and the Declaratory Judgment Act. There seems little reason that the Court would want to bite off more than it needs to.
