SCOTUS to hear Obamacare: How the 5.5 hours of oral argument will be divided

In a relatively unsurprising move, the U.S. Supreme Court this morning granted discretionary review of the Eleventh Circuit’s opinion invalidating the individual insurance mandate contained in the Affordable Care Act.  What was surprising, however, is that the Court allotted a whopping 5.5 hours of oral argument for all the questions under consideration:

  • DEPT. OF H&HS v. FLORIDA, No. 11-398:  “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.”  The Court granted two hours of argument on this question.
  • DEPT. OF H&HS v. FLORIDA, No. 11-398:  The Court directs the parties to additionally brief and argue:  “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act.”  The Court granted an additional one hour of argument of argument on this question.
  • NAT. FED’N INDEP. BUSINESS v. SEBELIUS, No. 11-393 and FLORIDA v. DEPT. OF H&HS, No. 11-400 (question 3 only):  The Court granted a total of 90 additional minutes of argument on the two severability questions:  “Whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution,” and  “does the Affordable Care Act’s mandate that virtually every individual obtain health insurance exceed Congress’s enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the Act?”
  • FLORIDA v. DEPT. OF H&HS, No. 11-400: The Court also granted from the states’ petitions: “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in SOUTH DAKOTA v. DOLE (1987), no longer apply?” The Court did not indicate whether a separate hour of argument would attach to the question or whether it will be argued with another issue, but a separate hour of argument seems quite likely given the distinctness of the issues.

The arguments will likely be broken up into at least two days, if not more.  After many months of heated debate and fierce litigation over the proper bounds of federal authority, some constitutional finality is now just around the corner.

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