The Obama Administration asked the Supreme Court on Friday to expand by a half-hour — to a total of six hours — the time allowed for oral arguments in late March on the constitutionality of the new federal health care law. In a ten-page motion, U.S. Solicitor General Donald B. Verrilli, Jr., said the added time would be provided for the opening arguments on Monday, March 26, on whether the challenges to the new individual insurance-purchase mandate are barred by the federal Anti-Injunction Act, a law designed to protect the government’s power to collect tax revenue. The motion also suggested ways to divide up the three days of argument among the parties, but noted that there is some disagreement over that part of the motion.
The Court on November 14 agreed to hear four separate issues about the new Affordable Care Act: first, the constitutionality of the insurance mandate; second, the issue of whether the challenges to the mandate are barred by the AIA; third, the question of what parts of the law, if any, would fall if the insurance mandate were struck down, and, fourth, the constitutionality of the expansion of Medicaid health coverage for poor people.
Here is the lineup of the three days of argument — first with the Court’s order, then with the division of time suggested on Friday by the Solicitor General:
Monday, March 26:
The Anti-Injunction Act issue: Court ordered 60 minutes of argument. The Solicitor General seeks 90 minutes, with the time allotted this way if the Court agreed to expand the time: Robert Long, amicus, arguing in favor of the AIA as a ban on challenges to the insurance mandate, 40 minutes; the Solicitor General, 30 minutes; the 26 states and the National Federation of Independent Business, 20 minutes combined. The motion noted that the states and the NFIB plan to seek more time than the 20 minutes proposed by the SG. If the Court declines to add 30 minutes, the 60 minutes would be allotted this way: Long, 30 minutes; U.S. 20 minutes, states and NFIB, 10 minutes combined.
Tuesday, March 27:
Constitutionality of the insurance mandate: Court ordered two hours of argument. The SG urged that the U.S. and its opponents (the 26 states and the NFIB), divide the time equally, with 60 minutes each. The SG noted that the states and NFIB will seek to divide their 60 minutes for 30 minutes each.
Wednesday, March 28:
First issue that day: Severability of the insurance mandate from other parts of the law if the mandate is struck down. The Court ordered 90 minutes of argument time. The SG urged the Court to divide the time equally: 30 minutes combined for the 26 states and the NFIB, 30 minutes for the U.S., and 30 minutes for Bartow Farr, as amicus arguing that all of the ACA must fall if the mandate is nullified (a position that neither the U.S. nor the states/NFIB support). The SG noted that the states and NFIB will seek more time than the 30 minutes assigned to them, and will ask for less for the U.S., with whatever time is given to the states and NFIB to be divided eqaully between them. The SG contended that, whatever time the Court allotted to the states and NFIB, the U.S. must have an amount equal to their combined time because it is facing a variety of other lawsuits over this issue, if the mandate falls, while the states and NFIB are interested in this case only.
Second issue the day: Constitutionality of the Medicaid expansion. Court ordered 60 minutes of argument time. The SG urged the Court to divide the time equally between the U.S. and the 26 states as a group. (The NFIB is not involved in this issue and there are no amici involved in oral argument.)
In SG Verrilli’s motion, he spelled out reasons for the disagreement, where that exists, and explained the government’s specific needs, while informing the Court of the forthcoming pleas for a different array that the states and the NFIB will be seeking.
The Court has complete discretion over how much time to assign for any argument, and how the argument is divided up.