Starting today the Supreme Court begins three days of historic arguments on the challenges to the current health care law. The case will receive a total of six hours of oral arguments, the most the court has scheduled in the last forty years.
In this corner, sporting a natty salt and pepper mustache is Donald Verrilli Jr., the Solicitor General of the United States. This will be Mr. Verrilli's lucky thirteenth argument before the high court and he will be defending the law.
In this tea party/US Chamber of Commerce sponsored corner is
Paul D. Clement, a former Solicitor General of the United States (under the Bush-duh! administration). Mr. Clement, the current darling of the right, will be arguing his 54th case before the U.S. Supreme Court. Mr. Clement has argued more cases before the Supreme Court since 2000 than any other lawyer. He is a formidable opponent.
During the three days of oral arguments, the court will address four separate issues and both Mr. Verrilli and Mr. Clement will handle three of the issues. On Monday the court will spend 90 minutes on our favourite issue: "why are we here?" otherwise known as the jurisdictional issue. Specifically the court will examine whether the 1867 Anti Injunction Act which forbids suits for the purposes of restraining the assessment or collection of taxes applies to this case and makes the rest of the arguments moot for lack of jurisdiction.
But Tuesday is when the fireworks will really fly when Verrilli and Clement face off for two hours of oral argument (two hours!!) on the issue of whether the law's "mandate" requiring everyone to obtain health insurance is constitutional. Does the interstate commerce clause of the constitution give congress the power to pass a law with such a requirement?
For those of you who have been to a Federalist Society meeting you know how the commerce clause argument bugs conservatives. The commerce clause has been used to uphold laws as varied as civil rights laws (remember Katzenbach v. McClung, 379 U.S. 294 (1964) and Ollie's Barbecue?) and laws preventing farmers from eating the wheat they grew (Wickard v. Filburn 317 U.S. 111 (1942) has always been a thorn in the side of the Tea party/Federalist/Scalia/Thomas crowd).
The question for legal theorists has never been about whether discrimination is OK, but whether the constitution specifically prohibits it and whether the use of the interstate commerce clause has just been a legal fiction to boot strap social legislation engineered by the courts. In other words is it good to decide cases by whose Ox is gored? Because if the courts can do that (which you might agree with like the civil rights cases) what can't they do (like stop you from eating the wheat you grow)? Just don't mention Bush v. Gore to conservatives because that makes them uncomfortable.
Rumpole predicts that the mandate argument is where Scalia and Thomas see the meat of this case and a hunting they will go with Roberts and Alito to get "Two sides Tony" Kennedy on their side of the issue.
The schedule for the remaining arguments is that for ninety minutes on Wednesday morning the court will hear arguments on severability and at 1:00 pm Wednesday there will be an hour of arguments on expanding medicaid under the challenged legislation. No truth that ESPN will be broadcasting the arguments live but for you appellate nerds, the SCOTUS blog will have audio and transcripts of the previous days arguments on line.
See You In Court.