Sunday, November 13, 2011

The biggest questions for Monday morning

It seems a foregone conclusion that the Court will, in one form or another, grant review tomorrow morning to review the constitutionality of the ACA. So what suspense is there in the order list to be issued at 10:00 a.m.? Here are the two most significant questions likely to be resolved tomorrow morning.

1. Will the Court grant any of the petitions other than those from the Florida case? The Florida case (and its three petitions in Nos. 11-393, 11-398, and 11-400) presents the Court with the best vehicle for deciding the constitutionality of the mandate. It has both states and private individuals as plaintiffs. It has Paul Clement as a principal lawyer for the challengers. It is the only case that presents the Medicaid question. It gives the Court the chance to decide every significant issue in the litigation. Thus, there seems little doubt the Court will grant one or more of these petitions. The only real question is whether it will take up the others--Thomas More Law Center v. Obama or Liberty University v. Geithner. My guess is no. My guess is that the Court grants the Florida petitions but holds the other two (and then holds Virginia v. Sebelius as well).

2. Will the Court grant on any questions other than the constitutionality of 26 U.S.C. 5000A? The overwhelming consensus that the Court will grant tomorrow concerns only the constitutionality of the minimum coverage provision. And if the Court takes up that question, it will necessarily have to take up any jurisdictional questions that might prevent it from ruling on the merits. (The does not mean that the Court will necessarily decide whether the Anti-Injunction Act applies here, if 26 U.S.C. 7421(a) is not jurisdictional. But at the very least the Court must decide whether the AIA is jurisdictional.) Moreover, if the Court holds any aspect of the ACA unconstitutional, it will have to face the severability question. But will the Court grant on any of the other questions presented in the petitions, such as (1) whether the ACA's Medicaid provisions exceed Congress's spending power, (2) whether the employer mandate as applied to state governments violates the structural principles of federalism, or (3) whether the employer mandates imposed on private employers exceed Congress's enumerated powers. The most likely of the three is the Medicaid question. And there is some reason to think that the Court might want that question in front of it, in part so it could potentially "split the baby" and thus appear a little less partisan. (Recall Grutter and Gratz, or Van Orden and McCreary.) The other questions seem like longshots. Even on the Medicaid question, I think the chances are less than 50 percent.

There are some other outstanding issues as well, to be sure. First, if the Court only grants the petitions from the Florida cases, it will probably need to appoint someone to argue that the AIA precludes jurisdiction. (Two possibilities are Alan Morrison, who has authored the amicus briefs on behalf of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, or Kevin Walsh, a former Scalia clerk and author of multiple amicus briefs filed in the lower courts addressing jurisdictional issues.) Second, the Court could rephrase some of the questions presented, though this seems unlikely. Finally, the Court might also set a briefing schedule, though the default rules would seem to work just fine for a late March argument.

But these are procedural details. The real substance of tomorrow's events will concern the cases and questions granted. Should be a fun morning.