Monday, November 7, 2011

What’s so special about November 10?

If November 10 is your birthday, then it’s a special day for you each year. But for those of us keeping an eye on the status of health care reform, November 10 this year is special for another reason.
During a private conference this Thursday, November 10, the U.S. Supreme Court will consider five petitions related to the Patient Protection and Affordable Care Act (ACA) and the Health Care and Education Reconciliation Act of 2010.

The petitions to be considered are:
  1. Thomas More Law Center v. Obama, et al. (No. 11-117),
  2. National Federation of Independent Business, et al., v. Sebelius (No. 11-393),
  3. HHS v. Florida, et al. (No.11-398),
  4. Florida, et al., v. HHS (No. 11-400), and
  5. Liberty University v. Geithner (No. 11-438).
A sixth petition not yet distributed to the Justices is Commonwealth of Virginia v. Kathleen Sebelius (No. 11-420). (In my next post on Wednesday, I'll discuss the government's response to that petition and the likelihood the Court will review it. If you enjoy reading about whether or not a state can sue our government (and I know you do!), be sure to come back and visit this blog on Wednesday.)

Lower courts in disagreement. You may recall that the Eleventh Circuit Court of Appeals found that the minimum coverage provision of the ACA is unconstitutional while the Sixth Circuit found the provision to be constitutional. Due to this split of authority in the lower courts, the Supreme Court is expected to decide to review at least one of the cases regarding the provision’s constitutionality. One legal expert, Professor Brad Joondeph, who writes the aca litigation blog, puts the likelihood of the Supreme Court granting review on this issue at 99%. “If there is a constellation of factors that guarantees certiorari, this is it,” according to Joondeph.

(I’m no expert on matters involving the Supreme Court. But I’ll go out on a limb and say the chances of the Supreme Court deciding to review one of the cases are much better than the chances were of the St. Louis Cardinals winning the World Series this year. One Vegas bookie had the odds at 999 to one. Way to go Cards!)

When will we know? The Court could issue an order granting review on the same day of the conference, November 10, or on Monday, November 14, when it issues its regularly scheduled list of orders. (November 11 is another special day, Veterans Day, but because it’s a federal holiday, we won’t hear from the Court on Friday.)


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