home
about the group
appellate attorneys
briefs
docket reports
oral arguments
news on
 mayerbrown.com
contact
 

SUPREME COURT DOCKET REPORT

Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2011 - November 14, 2011

November 14, 2011

Today the Supreme Court granted certiorari in three related cases of interest to the business community:


The Supreme Court granted certiorari today to resolve various constitutional challenges to the Affordable Care Act (“ACA” or “Act”), the Obama Administration’s signature health care law. The three petitions granted by the Court—Nos. 11-393, 11-398, and 11-400—all arise out of the Eleventh Circuit’s decision in Florida v. U.S. Department of Health and Human Services, 648 F.3d 1235. The Court will consider four related questions over five and a half hours of oral argument, which will likely be held in March.

The Individual Mandate: The Court scheduled two hours of oral argument to consider whether the ACA’s minimum essential coverage provision, the so-called “individual mandate,” which is codified at 26 U.S.C. § 5000A and requires that all individuals maintain a minimum level of health insurance by 2014 or pay a tax penalty, exceeds Congress’s powers under Article I of the Constitution.

The government argues that Congress was authorized to enact the minimum coverage provision under the Commerce Clause, which permits Congress “[t]o regulate Commerce . . . among the several States,” and the Necessary and Proper Clause, which allows it “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8.  The government also argues that the minimum coverage provision is supported by Congress’s “Power To lay and collect Taxes . . . [to] provide for the . . . general Welfare of the United States.” Id. The challengers argue that a federal mandate requiring private individuals to purchase an insurance product is unprecedented and exceeds the limited powers of the federal government, intruding upon an area of responsibility reserved to the states.

The Court’s decision on this issue could redefine the scope of federal legislative and regulatory authority. A decision that significantly expands or restricts congressional power could impact a vast array of future legislative initiatives, affecting businesses across all sectors of the national economy.

Severability: The Court also agreed to consider whether the minimum coverage provision can be severed from other provisions of the Act, which will allow the ACA’s other provisions to stand even if the individual mandate is ruled unconstitutional. Lower courts that have found the individual mandate unconstitutional have disagreed over whether it may be severed and which other provisions must be enjoined with it. The district court in this case held that the individual mandate was not severable and struck down the entire Act. The court of appeals came to the opposite conclusion, deeming the mandate fully severable and upholding the rest of the ACA. The Supreme Court will devote 90 minutes of oral argument to the severability question.

The Court’s decision on this issue will be of broad concern to all businesses operating in the United States. If the Court determines that the individual mandate is not severable from the rest of the ACA, then a decision holding the individual mandate unconstitutional could strike down the entire Act, including a wide range of provisions that are targeted primarily at employers. For more information on these provisions, see our April 2010 Employment & Benefits Update.

Anti-Injunction Act: At the government’s suggestion, the Court also agreed to consider whether the Anti-Injunction Act (“AIA”), 26 U.S.C. § 7421(a), deprives the Court of jurisdiction to review the individual mandate until after it takes effect in 2014. The AIA prohibits courts from considering any action that seeks to enjoin “the assessment or collection of any tax.” If the ACA’s penalty for failure to maintain health insurance is a “tax” within the meaning of the AIA, then it can be challenged only after the penalty has been assessed. The Court will devote one hour of oral argument to this issue.

Of the twelve court of appeals judges who have considered challenges to the ACA, three have concluded that the AIA bars courts from considering challenges to the individual mandate at this time, while nine have concluded that it does not. Both the government and the challengers take the position that the AIA does not apply here, so the Court is likely to appoint an experienced attorney as amicus curiae to argue that the AIA deprives the Court of jurisdiction to review the individual mandate at this time.

Medicaid Expansion: The Court also agreed to consider the constitutionality of an ACA provision that requires states, as a condition for receiving federal funds, to expand Medicaid eligibility to include persons earning up to 133% of what those at the federal poverty line earn. See 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII). Twenty-six states have challenged this provision as unduly coercive and exceeding the limits of Congress’s Spending Clause authority. The Eleventh Circuit, in the only court of appeals decision to rule on this issue, upheld the provision. The Supreme Court agreed to review that ruling and has allotted one hour for oral argument.

The Court’s decision on this issue may have a profound impact on businesses throughout the United States. Vast areas of national regulation are administered by the states and underwritten by federal funds, and the Court has previously given Congress broad latitude under the Spending Clause to place restrictions on federal funding to entice states to meet various federal objectives. Any shift in this state–federal balance could bring about a significant change in the regulatory landscape of numerous industries.

*     *     *

The Court declined review of several other challenges to the ACA raised in the petitions, including whether the ACA’s employer mandates exceed Congress’s powers and whether the application of the employer mandates to state governments violates state sovereignty.

Absent extensions or other revisions to the standard briefing schedule, amicus briefs in support of the petitioners (or neither party) will be due on January 5, 2012, and amicus briefs in support of the respondents will be due on February 6, 2012. Any questions about this case should be directed to Charles Rothfeld (+1 202 263 3233) in our Washington, DC office.


Today the Supreme Court also granted certiorari in a case in which Mayer Brown represents the respondent:

Astrue v. Capato, No. 11-159: The question presented is whether a posthumously conceived child is a “child” for the purpose of receiving survivor benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. 


Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Feel free to forward this message to anyone who you believe might be interested in the Docket Report.

Please visit us at appellate.net

Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 



 
 
© 2014. The Mayer Brown Practices. All rights reserved. --  Legal Notices | Attorney Advertising

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the “Mayer Brown Practices”). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. “Mayer Brown” and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.