This week, the U.S. Supreme Court heard three days of oral arguments to consider the constitutionality of the federal health reform law. On Tuesday, March 26, 2012, the justices heard arguments on whether the Anti-Injunction Act bars the court from addressing the merits of the challenge to the Patient Protection and Affordable Care Act's mandate–which requires that individuals buy insurance or pay a penalty–until the mandate takes effect in 2014. On Wednesday, March 27, 2012, the Supreme Court heard arguments on the constitutionality of the individual mandate. Finally, on Thursday, March 28, 2012, the justices heard arguments on the severability of the law. Audio recordings and transcripts are available here, and an overview of the arguments is below.

Day 1: Unlikely Delay Based on Anti-Injunction Act
On the first day of oral arguments, the justices did not seemed swayed by a court-appointed lawyer's arguments that the Anti-Injunction Act–which shields federal taxes from lawsuits before the tax is paid–applies to the individual mandate. The justices raised fewer concerns during the opposing argument, also suggesting that the case will likely clear this hurdle.

Neither the government nor the parties challenging health reform believe that the Anti-Injunction Act applies, but the justices sought to clarify whether the Anti-Injunction Act is jurisdictional. If the Supreme Court finds that the Anti-Injunction Act is jurisdictional (that is, a threshold issue), and decides that it does apply, then a ruling on the validity of the mandate would be delayed until at least 2015. 

Day 2: Tough Questions on the Mandate
On the second day of oral arguments, the conservative justices seemed skeptical of the constitutionality of health reform, while the liberal justices often came to the law's defense. The conservative justices posed aggressive questions to the attorney representing the federal government about the dangers of expanding Congress's powers by approving the mandate, while raising fewer challenges to the lead attorney for the plaintiffs. The Court's liberal justices offered comments that seemed to bolster the federal government's claim that it has the power to require citizens to buy coverage based on the unique concerns raised by the health care market. 

Addressing examples raised by the justices, the government sought to show that the individual mandate does not equate to requiring people to purchase cars, gym memberships, cell phones, broccoli, or burial services  because when the uninsured use–but don't pay for–health care services, the costs shift to everyone else in the market because insurers factor the inevitable use of health care services by the uninsured into the rates they charge everyone with insurance. Justice Kennedy and Chief Justice Roberts both asked critical questions of each side, suggesting that the Supreme Court's decision may turn on their conclusions. By the end of the session, Justice Kennedy appeared to agree that the health care market could be unique, but he still expressed concern over the limits of federal power.

Day 3: Whether All of Health Reform Would Fall
To determine how much of the health care law should fall if the individual mandate is found unconstitutional, the justices examined just where the Court's power ends and Congress's power begins. The justices appeared to struggle with whether it would consider only the text of the law or the legislative history as well, and whether and how to address Congress's intent.

Three scenarios were presented: (1) striking down the entire law (argued by the challengers of health reform), (2) striking down only the two provisions most closely tied to the individual mandate – the guaranteed-issue and community-rating provisions, which are meant make insurance affordable even for the sick (advocated by the government), and (3) striking down only the mandate (presented by a court-appointed attorney). The justices noted that the Supreme Court has no clear doctrine on severability, and seemed daunted by the vast number of provisions in health  law. Some appear clearly unrelated to the mandate, while many appear to have some connection to it.

Justice Kennedy wondered whether it would be more extreme for the Court to strike down parts of the act without striking down the whole, while Justice Scalia–viewing the mandate as the "heart" of the statute that resulted in passing its various provisions–seemed to prefer giving Congress a clean slate by abolishing the entire law. Other justices appeared to adopt other approaches: for example, Justice Sotomayor indicated that Congress should decide how to address the rest of the law, while Justice Breyer suggested that the opposing parties could propose an agreed list of provisions that should stand.

Although the justices should reach their decision shortly, the verdict on the constitutionality of health reform will not likely be announced until the end of the Court's term in June. Selina Spinos