The moment the Affordable Care Act (ACA or “the Act”) made its way through the House (by a vote of 219-212) and Senate (with a vote of 60-39) and landed on President Barack Obama’s desk to be signed and entered into the law books, it seemed a forgone conclusion that we would find ourselves here.  Analyzing every word of a Supreme Court hearing.  Waiting with anticipation as the Justices crafted their opinions.

The controversial nature of the Act was only amplified as legal challenges mounted and GOP Presidential hopefuls derisively referred to the sweeping health care reform legislation as “Obamacare.”  As the Supreme Court prepared for an epic series of oral arguments (six hours of hearings over a three day period), so did everyone else with an interest in the proceedings.   

Bloomberg put together a special page for the case.  The New York Times featured a story on the arguments on its website all three days. The lawyers tasked with presenting the arguments (Paul Clement stood for the 26 states challenging the Act, while several different attorneys, including U.S. Solicitor General Donald Verrilli Jr., spoke for the government depending on the issue at hand) spent days in front of moot courts, fleshing out what they would say to the Justices.  The members of the LexBlog Network also got into the act with a series of posts that stretched back to the beginning of the appeals process.

With so many articles, it was hard to pick out the best pieces, but some bloggers clearly stood out.  In particular, Ilyse Schuman, an attorney with Littler Mendelson and author on the firm’s blog Washington DC Employment Law Update, offered up some of the best overall coverage of the oral arguments, with a post following each session.

As each day of hearings focused on the different questions facing the Court, Ilyse put together three posts on the issues at hand. Each with an analysis of the Justice’s questions and rebuttals, along with her own thoughts.  Here’s an excerpt from the first of her posts on whether the claimants lacked standing under the Anti-Injunction Act:

“Specifically, the question is whether the Anti-Injunction Act (AIA) – which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person” – bars the individual mandate challenge because no individual penalty has yet been assessed. While it seems unlikely, if the Court were to ultimately decide – as the Fourth Circuit did in Liberty University v. Geithner – that the penalty is a tax and the AIA applies, a lawsuit challenging the individual mandate would not ripen until 2015 at the earliest when the IRS assesses the first penalties under the ACA.”

The following day, the Court took up the biggest of the three questions facing the Justices: the constitutionality of the ACA’s individual mandate.  The way the Justices vote on this issue will most likely determine the Affordable Care Act’s fate.  Once again, Ms. Schuman covered the arguments presented by the government and Paul Clement:

“Clement later took up the point Justice Roberts focused on, which is that he did not believe the government’s argument that all individuals participate in the health care market. According to Clement, “the whole problem is that everybody is not in that market, and they want to make everybody get into that market.” Justice Kagan disagreed with this claim, and accused Clement of “cutting the bologna thin.” She stated that “health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.””

The final day of oral arguments focused on two issues.  The first being if the ACA could survive as a law without the individual mandate provision.  The second, and last point covered in the hearings, was whether or not the expansion of Medicaid under the ACA, requiring Congress to increase spending for nearly 16 million additional recipients of Medicaid, was lawful.  One last time, here’s Ms. Schuman’s take on the hearings:

“According to Clement, the mandate is integral to the entire health care law: “If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to skyrocket.” He explained further that all of the main pieces of the law are tied together

Deputy Solicitor General Edwin Kneedler, advocating on behalf of the government, followed Clement. His main argument is that in the event the individual mandate is ruled unconstitutional, most of the law should stand. He claimed, however, that certain provisions would not be sustainable without the individual mandate: the requirement that insurers cover pre-existing conditions, and the requirement that they not charge higher premiums for individuals with health problems (the community-rating provisions). “

While Ilyse put together the most extensive coverage of the hearings on the Network, other LXBN authors threw their two cents in as the arguments continued through the beginning of the week.  One of the most interesting aspects of the posts covering the proceedings this week was the diversity of opinions and concerns surrounding the ACA’s fate.  I suppose this isn’t too surprising, given that this nearly 1,000 page document effects employers, individuals, and industries across the nation, including insurance companies and health care providers.

One industry that finds itself in the middle of the battle is the biosimilars industry.  Jonathan Loeb, a partner with Dechert LLP, wrote about the Biologics Price Competition Act, a part of the ACA, and what it will mean to for the future of biosimilars if it is part of the collateral damage on the firm’s blog BioLawGics:

“The Biologics Price Competition Act (BPCIA) was enacted as part of the Patient Protection and Affordable Care Act, currently under the Supreme Court’s scrutiny.  Theoretically, if the “Supreme Court holds any aspect of the Act unconstitutional, it can strike it from the books in its entirety.  Alternatively, the Court can sever the suspect provisions, and leave the rest of the Act intact.


So, in a nutshell, there seems like there’s a small, but real chance that the entire act, including the BPCIA, will be struck down.  That possibility would leave the stakeholders in the biosimilars space with either the exciting opportunity or the terrifying risk of Congress redesigning the BPCIA from the ground up.  One thing is for sure — if the BPCIA is struck down, the long path to the first approval of a biosimilar will get much, much longer.”

As I mentioned above, the insurance industry is obviously an interested party in the Supreme Court’s decision on the ACA.  Although the matters before the court aren’t explicitly about insurance law, Wystan Ackerman, a partner with Robinson & Cole in Hartford, Connecticut, was too interested in the oral arguments to not find an “insurance law angle.”  Here are a few of his thoughts on the Insurance Class Insider:

“(A) recent column by George F. Will in the Washington Post caught my eye.  He highlights an amicus brief filed by the Institute for Justice, which argues that, as a matter of contract law, forcing individuals to enter into an insurance contract is contrary to the fundamental principle of mutual assent that has been a foundation of contract law for centuries.  I remember that being the focus of what was probably the very first contracts law class I had with E. Allen Farnsworth, but this has not been an obvious point when people think and write about the Obamacare debate.  The Institute’s brief explains how the law of contracts has held for ages that you cannot coerce someone to enter into a contract, which is why there are defenses of duress and fraud, for example.  The Institute argues that, if Congress has the power to compel people to buy an insurance product, why wouldn’t Congress have the power to compel people to buy other products it deems necessary for purposes of interstate commerce?  Where do you draw the line?’

During the course of preparing for this post, I listened to all six hours of the oral arguments (Steve Delchin of Squire Sanders pointed out that maybe one day we’ll get to watch the SCOTUS at work, but not today).  I’m no lawyer, and while I’ve spent the better part of three years reading legal blogs, my grasp on the legal minutiae upon which so many cases turn is lacking.  That said, I wasn’t alone in feeling a little cheated by the government’s case when compared with Paul Clement’s brilliance in front of the Supreme Court.  Jay O’Keefe, an attorney with Gentry Locke Rakes & Moore, provides a few links that articulate my gut feelings on his blog, DeNovo: A Virginia Appellate Law Blog:

“Finally, in a last-ditch attempt to squeeze something useful out of this post, I will direct you to Ross Guberman’s site. Ross is a legal-writing expert and De Novo favorite for two reasons: first, he knows his stuff; and second, he backs it up with concrete examples from briefs by big-time lawyers. I love his book, Point Made, and I enjoy the the shorter pieces that he does on specific briefs.

In honor of this week’s events, Ross has taken a fine-toothed comb to the Government’s brief, to see whether–in his words–the Case of the Century inspired the Brief of the Century.

Spoiler: it didn’t, at least from the Government.

But it’s worth taking a look at Ross’ piece to see some of the reasons why the Government’s brief falls short of greatness. Seeing what a legal writing critic has to say about the work of extremely talented lawyers working on an impossibly high-profile case provides a great learning experience.After all, the SG’s office is known for the consistently high quality of its briefing.”

With six hours of oral arguments in our rear-view mirrors, now we get to play the waiting game.  The fate of the Affordable Care Act has already been decided as the Supreme Court Justices’ vote were cast late last week, but while raising your hand takes seconds, writing an opinion takes weeks, sometimes months.

As an observer, I’m almost relieved the decision likely won’t be handed down until June.  These proceedings were built up as the seminal case the Supreme Court would handle this term.  A sort of Super Bowl for the SCOTUS.  And just like the Super Bowl, when the game is done I feel slightly cheated.  Not because it lacked greatness, historical significance, or pomp and circumstance, but because the media frenzy and deluge of opinion pieces aggrandized the oral arguments to the point that nothing would match the hype.

Now, as we wait, there is a feeling of inevitability, but also peace and quiet.  We get to reflect on the Affordable Care Act (Caitlin Padula of the Shriver Brief actually does that here, on the Act’s two year anniversary), along with the nearly unprecedented SCOTUS hearings.  It’s a chance to soak in the moment that passed all to quickly.  At least, that’s how I’ll feel until June rolls around.

To read more from LXBN members on the Supreme Court hearings and Affordable Care Act in general, check out LXBN’s library of posts here.