A viewer's guide to the SCOTUS ruling

by JENNIFER HABERKORN, politico.com
June 25th 2012 5:34 PM

If you thought Monday's immigration decision was confusing, wait till the Supreme Court weighs in on health care Thursday. Court-watchers expect a flurry of opinions, dissents and concurring judgments — a confusing outcome for a complex law.

When that happens, all of Washington — and the law's supporters and opponents throughout the country — will be scrambling for the quickest way to find out the law's fate.

(Also on POLITICO: Health care ruling expected Thursday)

Here is POLITICO's viewer's guide to the ruling.

What is the court going to decide?

There are four questions before the court. They are:

- Is the individual mandate constitutional?

- If the mandate is found to be unconstitutional, how much of the health reform law should come down with it? Or is the mandate "severable" — meaning it can be struck down by itself?

- Is the health law's Medicaid expansion constitutional?

- Does a tax law prevent the court from even addressing the mandate issue now, before it goes into effect in 2014?

The ruling — or rulings — on all of these questions are expected to come out Thursday beginning at 10 a.m. It is possible that the court could push the health ruling into the summer, but that's considered highly unlikely.

There is another way that the court could punt. It could decide that the tax law — the Anti-Injunction Act — bars it from even considering the questions on the mandate until after 2014. But during arguments, none of the justices appeared convinced that the tax law applies to the health reform law.

Will the court settle this in one or multiple opinions?

Because the court has so much to address, it's possible that the justices will issue more than one opinion on health care reform. The court could easily combine the tax issue and the mandate — and perhaps even severability, if it needs to be addressed — into one opinion.

There's a good chance that Medicaid could be addressed in a separate opinion. That's because the legal issues over Medicaid have very little to do with the mandate. Plus, the vote tally could be different, too.

The court could also decide to split the mandate and severability into different opinions. If that happens, there could be an agonizing period where everyone knows the mandate has been struck down — if that's how the court rules — but they have to wait for several minutes for the next opinion to find out what happens to the rest of the law.

"The court would love to do just one opinion," said Tom Goldstein, partner at Goldstein & Russell and publisher of the SCOTUSblog. "The question is whether there is enough time, given the different authors and that the majorities may differ on the issues."

He's betting on one "per curiam" opinion, or an opinion written on behalf of the court instead of under one author's name.

"But don't be surprised if they have to break it up," he added.

Bradley Joondeph, a Santa Clara University law professor who writes the "aca litigation" blog, says the severability question "is really just a question of what relief or remedy the court is going to order" if it strikes the mandate. "It's not unprecedented that they would be addressed in different opinions, but it's very rare that you split those from each other."

How did the lower court rule?

The 11th Circuit Court of Appeals ruled that the mandate is unconstitutional but that the entire remainder of the law — including requirements that insurance companies accept everyone and charge similar rates to the old and young — could stand.

The court will determine whether to uphold that whole decision or parts of it, or to reverse it completely. So if the justices rule that the mandate is unconstitutional, the opinion could be written in a way that says the 11th Circuit decision is affirmed.

Could this ruling be super confusing?

Why, yes, it could.

The mandate question is likely to be clear cut: It will either be upheld or struck down. But on the issue of severability — how much of the law has to come down if the mandate is found unconstitutional — there are many ways the court could rule.

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown.

"I think the trickiest part is going to be if there are plurality opinions," said Karen Harned, executive director of the National Federation of Independent Business's Small Business Legal Center, which filed the lawsuit with the 26 states. "It could be hard to quickly figure out what the new rules are."

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn't have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Could the court decline to decide how much of the law must be struck?

During oral arguments, the justices were clearly befuddled at how to address the enormous task of trying to determine the issue of severability. If the court strikes the mandate, much of the opinion is expected to address how much of the law needs to be struck.

"It's akin to drafting legislation, so it's a real challenge," Joondeph said.

The court has the option of sending the question back to the lower court — the 11th circuit. But that's considered relatively unlikely for two reasons: the justices know that the country wants a definitive answer on the health law, and if the question goes back to a lower court, the justices are likely to have to deal with it later.

And if the courts aren't clear about which pieces of the law are out, someone could sue HHS for implementing a piece that it shouldn't, or for not implementing a piece that it should.

"I would think that they're not going to want to create a situation in which there is a lot of continuing litigation," said Charles Rothfeld, a partner at the law firm Mayer Brown. "I would guess that they would like to put some clear limits on what the ruling means."

How are the opinions released?

The justices release their opinions from the Supreme Court bench beginning at 10 a.m. Each opinion is read by the justice who wrote it, followed by any other justice who wants to read a summary of his or her concurring opinion or dissent — and there are expected to be several in this case.

There are three cases left on the court's docket, and the cases will be released in reverse order of the authoring justice's seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

If Roberts does author the opinion, he's at the top of the seniority list, so health care could be the last of the three cases released on Thursday.

As the justices begin to read the majority opinion, the printed opinions are released to reporters in the Supreme Court's press gallery. Then, they should be released online within minutes — unless the court's website gets overloaded and crashes.

This article first appeared on POLITICO Pro at 6:08 p.m. on June 25, 2012.

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