But this time around, unlike three years ago when the court rejected a constitutional challenge to the law’s individual mandate, the case, King v. Burwell, focuses primarily on statutory interpretation.

The issue is whether means what it seems to say if read literally and in isolation from the rest of the law: that Affordable Care Act subsidies are available only to people “enrolled … through an exchange established by the state.”

And the different interpretations have proven dicey — so much so that each side in the case is having trouble explaining away the evidence supporting the contrary position.

Solicitor General and other defenders of the subsidies have failed to suggest any very plausible reason — other than sloppy draftsmanship, on which Verrilli has not much relied — why Congress said “established by the state” if it intended that subsidies also be available in the federally established exchange.

On the other hand, ACA opponents who read “established by the state” literally have produced little evidence that the law’s drafters deliberately and quietly planted in an obscure subclause the words that could become the seeds of the law’s destruction.

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Plaintiffs in the case suggest that the drafters inserted these four words in order to pressure states to establish their own exchanges. But the legislative history offers scant evidence of this intent. And the three dozen states in question either failed to notice or disregarded it.

How these explanations sway the justices — or at least five of them — will determine whether the language drafted by Congress means that low-and-middle-income people are not eligible for the overhaul’s tax subsidies because they live in a state that chose to rely on the federal government’s healthcare.gov, rather than establish its own online insurance marketplace. The subsidies make insurance affordable to many of the people who seek Obamacare coverage because they don’t get health coverage through their employers.

If the court rules that the subsidies are available only in states — mostly blue — that established their own exchanges, insurance markets in the other three dozen or so states might . Unless Congress or the states reliant on healthcare.gov were to move fast to limit the damage, few people in those states would buy individual insurance. Those who did would likely have health problems and premiums would soar.

Many ACA opponents say that section 36B “means what it says,” as conservative implied at the March 4 oral argument, even if the wording “may not be the statute [Congress] intended” and even assuming that it might “produce disastrous consequences.”

To the contrary, say and other supporters, the law’s overall text, structure, design and history make clear that Congress intended to make subsidies available in all 50 states. They say the challengers’ interpretation would defeat the law’s purpose of making health insurance widely affordable. The Internal Revenue Service came to the same conclusion in an interpretive rule, to which Verrilli argued the justices should defer if in doubt.

As in 2012, the stakes in King v. Burwell are so high that Obama has made it clear that he would attack any decision that would cripple the health law as legally indefensible and politically motivated.

“[T]his should be an easy case,” . “Frankly, it probably shouldn’t even have been taken up … based on a twisted interpretation of four words. … I’m optimistic that the Supreme Court will play it straight.” The next day, he added (without specific reference to the court) that “it seems so cynical to want to take health care away from millions of people.”

These shots across the court’s bow came even though Scalia and Justice Samuel Alito had strongly suggested during that they would vote against the administration’s position.

Alito also suggested the possibility of delaying until 2016 the effective date of any decision against the administration. Such a delay, he said, would give the states and Congress time to avoid the disruption that would be caused if the court ruled the premium subsidies now available in the three-dozen states using healthcare.gov are illegal.

Justice Clarence Thomas, who was silent as usual during the arguments, is expected to vote with Scalia and Alito. The four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — seemed poised to line up with Obama. So the president will win if either Chief Justice John Roberts or Justice Anthony Kennedy sides with him.

While Kennedy’s vote is still up in the air, ACA supporters were cheered by his assertion to the lawyer challenging the subsidies that “there’s a serious constitutional problem if we adopt your argument.” Kennedy reasoned that the states are being unconstitutionally “coerced” if, as the challengers argue, the law requires them either to establish their own exchanges or see their residents disqualified from the subsidies.

The only way to avoid constitutional problems, suggested Kennedy, may be to resolve any ambiguities in Obama’s favor. This seemed inconsistent with the suggestions by Scalia, Alito and the challengers that the relevant language is free of ambiguity and without constitutional problems.

Roberts was sphinxlike during the argument in King v. Burwell. The case puts him in an unenviable position.

When Roberts stunned court-watchers by joining the four liberal justices and upholding the individual mandate in the 2012 decision, , he was bitterly assailed by his usual allies — Kennedy, Scalia, Thomas and Alito — and was called a traitor by many other conservatives.

This barrage was intensified by a well-sourced that Roberts had initially voted to strike down the individual mandate and changed his mind — provoking a huge battle inside the court — after liberals had preemptively denounced any decision to strike down the law as politically motivated, conservative “judicial activism.”

The conservative denunciations of Roberts will be even more bitter if he sides with Obama this time, too. On the other hand, if Roberts votes with the other four Republican appointees to gut the Democratic president’s signature accomplishment, it will feed the kind of attacks that the on the Roberts court’s conservative majority as a bunch of robed politicians.

Looking to the future, a ruling against Obama could be extremely awkward politically for Republican members of Congress, presidential candidates and officials in the mostly red, affected states, even though it might be cheered (at least initially) by Republican voters.

In this scenario, the president and other Democrats would immediately demand that Republicans help them save the subsidies of millions of people at risk of losing their health insurance, by adopting new legislation.

Some Republicans say this would be an opportunity to extract compromises from Obama such as more choices for consumers – especially less expensive, less comprehensive health insurance options; the elimination of the mandate to buy insurance; or restrictions on medical malpractice lawsuits.

Others predict a humiliating and internally divisive Republican cave-in to avoid being blamed for the “disastrous consequences” that Justice Scalia hypothesized.

Whatever the outcome, the chief justice, in his tenth year on the Court, is in for a long, hot summer.

Stuart Taylor Jr. is a Washington writer, lawyer and Brookings nonresident senior fellow.

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The oral arguments regarding the law’s contraception coverage mandate, slated for March 25, will be a rematch between two lawyers who squared off in the first health law challenge — Obama administration Solicitor General Donald B. Verrilli Jr. and former Bush administration Solicitor General Paul Clement.

The key questionÌýis whether privately owned businesses can be hit with crippling fines of $100 a day per worker if their devoutly Christian owners refuse on religious grounds to include in their health plans four contraceptive methods that they equate with abortion.

The cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, are the leading edge of more than 90 other related, pending suits filed around the country by Catholic and other Christian plaintiffs, including hospitals, social service agencies, universities and schools and businesses.

More than 1,000 religious institutions and other employers with millions of employees have similar religious objections. The administration has exempted a narrow category of these employers — mostly churches, other houses of worship and nonprofits with religious missions.

Religious groups, freedom-of-religion groups and others who oppose the mandate have filed 59 friend-of-the-court briefs. Feminist, health care, civil rights, and others who support it have filed 23.

The cases coming before the high court, as well as some of the challenges brought byÌýmany other Christian institutions and corporations seeking religious exemptions, are focused onÌýobjections to fourÌýof the 20 federally approved contraceptive methods that Hobby Lobby says “would make them morally complicit in abortion.”

The plaintiffs define abortion more broadly than federal law and take exception with those four methods because each sometimes prevents the fertilized eggs from implanting into the uterus. Specifically, the companies object to the emergency contraceptives Plan B and ella — the so-called “morning after” and “week after” pills — and two types of IUDs, which are more effective and more expensive than many other methods.

The Catholic plaintiffs in many of the other pending cases object to all contraceptives, including the birth control pill.

THE LEGAL ISSUES IN PLAY

Both Hobby Lobby, a chain of more than 500 arts-and-crafts stores owned by David and Barbara Green and their three children with 13,000 employees around the country, and Conestoga, which has 950 full-time employees and is controlled by five members of the Mennonite Hahn family, provide their employees with comprehensive health insurance except for those four contraceptives which they consider immoral.

Under health law regulations, though, a company that chooses to provide insurance is to cover all 20 federally-approved contraception methods, at no cost to employees, as part of preventive benefits. Over the course of a year, the fine for not complying totals $36,500 per employee. In 2015 and 2016, businesses with more than 50 employees that do not provide insurance will start facing a tax of $2,000 per employee per year.

The companies’ claims for relief rest mainly on the of 1993. Congress passed itÌýalmost unanimously to provide broader legal protections than the First Amendment guarantee of “free exercise of religion,” which the Supreme Court in a 1990 case had interpreted more narrowly than before.

The law prohibits the federal government from adopting requirements that impose a “substantial burden” on a person’s “exercise of religion” unless the requirement is “the least restrictive means of furthering [a] compelling governmental interest.”

But the government argues that the companies “have not identified a single case in this Nation’s history in which a commercial enterprise has successfully [obtained a religious] exemption from a neutral law regulating a for-profit corporation’s commercial activities.”

The companies contend that court precedents that support religious rights for nonprofit corporations and for commercial activities extend protections to for-profit corporations.

Much of the publicity about the cases focuses on a threshold issue that the justices have never faced: whether religious owners of for-profit, privately held corporations can claim any religiously-based rights on behalf of their companies, under either religious freedom act or the First Amendment. The Obama administration says no.

If the two companies can overcome that hurdle, they must then clear three others to secure the exemption they seek.

They will win only if they convince the court that their religious rights would be “substantially burdened” by compliance with the contraceptive mandate, and the government cannot prove that the mandate furthers a compelling governmental interest and is the least restrictive means of doing so.

All four issues are hotly debated in the opposing briefs, and by legal scholars, with no precedent offering strong guidance on what the outcome should be.

POINTS AND COUNTERPOINTS

The administration and its allies argue that the mandate imposes only a slight, insubstantial burden on Hobby Lobby, Conestoga, and similar employers, which would be required only to provide the required contraception coverage for employees who would themselves make independent decisions whether to use it.

The administration also says that the mandate advances compelling interests in providing the companies’ employees and their children with ACAÌýbenefits that protect their health while averting unwanted pregnancies andÌýfoster gender equality.

Hobby Lobby, Conestoga, and othersÌýcounter that the mandate is a substantial burden because it would force them to either violate their religious beliefs or to be subjected to what they call “crippling” fines. The government’s “compelling interest” argument should be defeated, Hobby Lobby says in its brief, because the health law is “riddled with exceptions” that will leave tens of millions of employees nationwide with no employer-provided contraceptive coverage even if the government wins.

For example, the law does not require employers to offer health insurance at all. If a company does not offer a group plan, then the contraception mandate doesn’t apply. The law also exempts from the mandate large businesses with “grandfathered” health plans – those plans that were that were in existence at the time of the health law’s passage and have not been changed significantly since.

In addition, the regulations exempt entirely churches and some other exclusively religious, nonprofit corporations, and they offer a complex “accommodation” to religiously affiliated, nonprofit corporations such as hospitals and schools. The government cites precedents holding that such government-granted exceptions are no basis for court-ordered religious exemptions.

The two companies add that the government could provide free contraceptives for employees of religious objectors, and that in any event free or inexpensive contraceptives are available at community health centers and other public clinics.

Meanwhile, although the challenges to the contraceptive mandate pose no threat to most ACA provisions, at least four unrelated, broader lawsuits pending in lower courts seek to use a literal reading of the law’s own language to cripple it in most states.

Those four lawsuits are regarded as longer shots than the challenges to the contraceptive mandate. They claim that the federal health insurance exchange operating in the 36 states that refused to create their ownÌý exchanges have no authority to distribute the tax credits that would make insurance premiums affordable for many buyers.

The health law says that only “an exchange established by the state” can provide the tax credits. But an Internal Revenue Service regulation says that this language should not be taken literally because doing so would defeat a central purpose of the law.

A decision in the Hobby Lobby and Conestoga cases is expected by late June.

Stuart Taylor Jr. is an author, journalist and nonresident fellow at the Brookings Institution.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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An Obama Administration regulation requiring that many employers — including religious employers — provide insurance without copays or deductibles that covers a wide range of contraceptives, including sterilization, as part of women’s preventive health care.Ìý

Religious groups decry it as an extreme attack on their freedom. Already, more thanÌý have been filed by Catholic and evangelical plaintiffs including hospitals, universities and private businesses. The Catholic plaintiffs object to all contraceptives, the evangelicals to methods that induce what they call abortion.

While the legal challenges pose no threat to the law as a whole, they have all the ingredients of a legal donnybrook that might well end up before the high court.Ìý

Among the thousands of employers with religious objections are many Catholic hospitals, universities, charities, other religious institutions, and private companies owned by devout Catholics and evangelicals. Collectively, they have millions of employees.

Although the regulation allows for a narrow category of religious employersÌý— mostly churches and other houses of worship — to be exempt from the requirement, the administration has so far refused to grant exemptions to institutions such as Catholic hospitals, because they employ and serve mainly members of the general public and their mission is not primarily religious.

The Legal Issues In Play

The plaintiffs’ claims rest mainly on the . Congress passed this measure in 1993 to provide broader legal protections than the First Amendment guarantee of “free exercise of religion,” which the Supreme Court had interpreted narrowly in a 1990 decision. It prohibits the federal government from imposing a “substantial burden” on a person’s “exercise of religion” unless it can prove that doing so is “the least restrictive means of furthering [a] compelling governmental interest.”

The administration and its allies argue that the mandate imposes a slight, indirect burden on religious employers, who would be required only to facilitate contraception decisions made independently by their employees, and furthers a compelling need to avert unwanted pregnancies, improve maternal and child health, reduce health care costs and reduce poverty.Ìý

They also stress that 20 states have laws similar to the contraceptive mandate; that many Catholic hospitals and universities already provide birth control coverage for their employees; and that polls show the vast majority of Catholic women use birth control methods banned by the church.

In February, in what the administration called a compromise, it said that the cost of the coverage would be borne not by employers with religious objections but by their insurance companies, which in turn would likely save more than the cost of the contraceptives by averting unwanted pregnancies. The compromise, though, would not apply to companies that self-insure.

The plaintiffs claim the mandate forces many religious employers to violate their religion or be subjected to crippling fines of $100 per employee per day, according to press reports and court documents. They add that government’s “compelling interest” argument rings hollow because the health law exempts many non-religious employers, with more than 190 million employees, from its coverage requirements, such as businesses with fewer than 50 workers and those with established health plans that were given “grandfathered” status.

The plaintiffs also stress that free or inexpensive contraceptives are available at community health centers and other public clinics.

Action In The Courts

So far the scorecard on this issue in the federal district courts is three preliminary injunctions against the contraceptive mandate and two decisions upholding it, one of which was later stayed without comment on appeal, at least for now.

That decision came on Sept. 28 when Judge Carol Jackson of St. Louis rejected a lawsuit brought by Frank O’Brien and his private, for-profit company, O’Brien Industrial Holdings, LLC.

O’Brien and his company claim that they cannot comply with the contraception mandate without violating his Catholic beliefs and that noncompliance would subject the company to “ruinous fines” that would drive it out of business.

But Jackson said the mandate imposed only a “slight,” indirect burden because the decision to use contraceptives was ultimately in the hands of third parties — individual employees — and O’Brien’s company would pay only indirectly, through its insurance company.

O’Brien won the stay from an appeals court on November 28. By then, Judge Reggie Walton, of Washington, D.C., had rejected Jackson’s reasoning in a Nov. 16 decision related to a separate case, holding that “it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object,” so “it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties.”ÌýÌý

Walton granted a preliminary injunction to Tyndale House Publishers, Inc., an Illinois publisher of Christian books. The company and its founder and CEO object to any contraceptive that “can cause the demise of an already conceived/fertilized human embryo.”

Walton ruled that the contraceptive mandate imposed a “substantial burden” because it “places the plaintiffs in the untenable position of choosing either to violate their religious beliefs” or to risk financial penalties. He added that the government had not shown a compelling need for forcing Tyndale to provide coverage for the “very specific subset of contraceptive drugs and devices” to which it objected — especially since “the government itself has voluntarily omitted” millions of people from coverage through the health law’s other exemptions.

Judges in Colorado and Michigan have also issued preliminary injunctions in similar cases.

These early decisions lead some legal experts to suggest that the contraceptive mandate challenges have more chance of ultimate success than other, broader pending lawsuits against health law provisions.

Stuart Taylor Jr. is an author, journalist and nonresident fellow at the Brookings Institution.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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The pending challenges to the law, and related regulations, range from the Goldwater Institute’s claim that it gives the Independent Payment Advisory Board unconstitutionally broad powers over Medicare services and payments, to the more than 35 lawsuits by religious employers attacking a Department of Health and Human Services rule that requires them to provide their employees with insurance that covers women’s contraceptives without a copayment.

By far the broadest and potentially most damaging of the legal challenges turns on whether Congress intended that tax credits and subsidies to help consumers buy health insurance be available only through state-created exchanges. Many states are signaling that they may not create their own exchanges, leaving the federal government to do so, as the law requires.

If subsidies and tax credits aren’t available in states with federally run exchanges, conservative legal scholars say, then two other lynchpins of the law would also be undermined: the requirementsÌýthat employers of a certain size offer insurance and that most individuals buy insurance.

Supporters of the law scoff at the arguments, asserting that Congress clearly intended that the subsidies and credits would be available in all exchanges.

But, confident of their case, some health law opponents, including Jonathan Adler of Case Western Reserve Law School, Michael Cannon of the libertarian Cato Institute and National Affairs editor Yuval Levin, are urging Republican-led governments to refuse to set up the online insurance purchasing exchanges, which would, as the argument goes, make their residents ineligible for the tax credits and subsidies. They say that this step also would gutÌýthe so-called employer mandate, which the law says will take effect in states where residents are eligible for such assistance.

The mandate requires employers with more than 50 full-time workers to offer health insurance policies for employees and their families that include a minimum set of benefits, or pay a tax of $2,000 per employee for failing to do so. The tax wouldn’t apply to the first 30 workers.

Health law critics theorize that by refusing to set up exchanges, states could also carve a hole in the provision that requires individuals to either obtain insurance or pay a tax as a consequence of choosing not to, which the Supreme Court upheld in June. And if states could disable both the employer mandate and part of the individual mandate, they could wreak havoc with the law’s overall operation.

Indeed, if lots of states also refuse to participate in the Medicaid expansion, as the Supreme Court ruled they can do without penalty, “the ACA may end up being fully applicable only in a portion of the United States,” says David Rivkin, a Washington lawyer who spearheaded the constitutional challenges that fell one vote short of striking down the entire measure last summer. Rivkin and some other ACA critics hope that by exploiting what they see as the law’s still-unresolved flaws, they can hasten its inevitable failure to work as advertised, and thus clear the way for Republicans to dismantle it.

The Obama administration and other ACA supporters dismiss these legal theories as far-fetched and view conservatives’ broader hopes of crippling the entire law as wishful thinking. They say states have no power to limit the subsidies, the employer mandate, or the individual mandate; and, that if they did, the effect would be to block their own citizens from receiving large federal tax breaks and obtaining affordable health insurance.

Tracking The Argument Last year, the Internal Revenue Service issued an interpretive rule saying that federal exchanges also would have the power to distribute the tax credits and subsidies.

But Oklahoma Attorney General E. Scott Pruitt, a Republican whose state has refused to set up an insurance exchange, has urged a federal district court to invalidate the IRS rule and thereby nullify the employer mandate in Oklahoma.

With only 17 states having so far committed to creating their own health insurance exchanges — in part because of concern that the administration has not provided clear guidance on how they should work — more lawsuits could be on the way, brought by states, employers or both.

As even some health law supporters concede, the claim that Congress denied to the federal exchanges the power to distribute tax credits and subsidies seems correct as a literal reading of the most relevant provisions. Those are sections 1311, 1321, and 1401, which provide that people are eligible for tax credits and subsidies only if “enrolled . . . through an Exchange established by the state” (emphasis added).

Why would the measure’s drafters have wanted to cripple any fallback exchanges created by the federal government? Pruitt, Cannon, Adler, and others claim the legislative history shows that the drafters wanted to give states strong incentives to create their own exchanges, and expected them to do so.

State governments hostile to the law might also hope that refusing to create exchanges could free some of their residents from the individual mandate, which imposes tax penalties on people who don’t obtain insurance.

These arguments are to be published in Health Matrix by Adler and Cannon. There are, of course, also forceful counterarguments.

The Counterpoints The administration and other advocates say that the 2,700-page law’s language on the powers of federal exchanges clearly did not reflect the intent of Congress. That, they say, was to give federal exchanges all powers enjoyed by state exchanges, in keeping with the overarching purpose of making health insurance affordable for the vast majority of Americans.

The law’s legislative history and a related statute establish “that Congress understood that premium tax credits would be available through both federal and state exchanges,” , of the Washington and Lee University School of Law, in the Health Affairs Blog.

Jost said that while “the ACA is not a model of clear drafting,” the Adler-Cannon theory “has little chance in succeeding in the courts, and even less chance of being addressed by the courts anytime in the near future because of jurisdictional problems.” He referred to a federal law, the Anti-Injunction Act, that bars courts from enjoining federal taxes — perhaps including the tax to be imposed on employers who defy the mandate — before they come due. In addition, argued Jost, only employers — not states such as Oklahoma — would have legal standing to challenge the IRS’s interpretation, and probably not before 2015.

It’s unclear at this point whether many businesses that would like to avoid the employer mandate, or many states besides Oklahoma, will be motivated to take on the Obama administration in the courts again.

It’s also unclear how receptive courts will be to efforts by Republican-run states to dismantle part of a law that the Supreme Court has so recently upheld after a titanic battle.

And, in the perhaps unlikely event that the dispute over the powers of federal exchanges reaches the Supreme Court, would Chief Justice John Roberts — having made his uneasy peace with Obamacare in June — have the stomach to resume hostilities based on a legal analysis that even lawyers find hard to follow?

Stuart Taylor, Jr. is an author, journalist and nonresident fellow at the Brookings Institution.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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But they were almost all there anyway. If the health care ruling did come down, it might well be the biggest decision in decades. And these reporters and lawyers would no more take a one-in-ten chance of missing it than play Russian roulette with one bullet in the chamber.

Besides, they also knew that a second Big One (immigration), and a third (mandatory life without parole for juveniles), were a lot more likely today, and likely to deliver high drama of their own.

The chatter before the justices started talking was about what could be read into tea leaves, such as Justice Ruth Bader Ginsburg’s cheerful demeanor when she alluded to the health care case in recent public remarks.

The chatter after was about the angry dissents in those other two cases.

But inside the palatial courtroom, the real drama came when the justices were the ones talking.

The first to speak at length was Justice Elena Kagan, summarizing her opinion striking down by 5-4 all laws — both state and federal — that mandate sentences of life in prison without parole for certain especially horrible murders by juveniles (as well as adults). Then came Justice Samuel Alito, summarizing at length his dissent — one of three — from what he called a sweeping aside of the laws of a majority of the states, based not on the Constitution but on the whims of five justices.

Justice Anthony Kennedy then summarized his opinion striking down by 5-3 three provisions of a notoriously tough Arizona law designed to stem the tide of illegal immigrants into that state. Justice Antonin Scalia summarized his dissent from that one.

Justices summarize dissents from the bench only on those unusual occasions when they are fighting mad. And if Alito was smoldering, Scalia was blazing with anger, both at the majority and at the Obama administration, which he accused of refusing either to enforce federal immigration law or to allow border states to protect themselves.

It wasn’t over. Reporters got another surprise when they streamed down to the press room after Chief Justice John Roberts had announced that all remaining cases (including health care) would be issued on Thursday.

This one was a terse, one-page smack down — again by 5-4 — of the Montana Supreme Court for upholding a state law that the majority saw as unmitigated defiance of the same majority’s 2010 Citizens United decision that corporations have First Amendment rights to spend on political campaigns.

Plus, naturally, a dissent by the four liberals, who called for overruling Citizens United.

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For starters, it’s big enough for the justices to schedule six hours of arguments — more time than given to any case since 1966. After all, the Affordable Care Act is arguably the most consequential domestic legislation since the creation of Medicare in 1965.

It’s also big enough to attract more briefs than any other case in history. At least 170, including more than 120 “friend-of-the-court” or amicus briefs, have been filed, many of which are joined by 10, 20 or more groups of every imaginable description.

And, finally, it’s big enough to cause the justices to postpone until October half of the 12 cases that they would ordinarily hear in April in order to clear time to get started on the health care opinions that they are expected to issue by the late June, or possibly, early July.

What’s it all about? The immediate issues, in the order the court will hear them, begin with the question of whether the so-called “individual mandate” — which requires that almost all Americans without coverage buy individual health insurance policies or pay fines — is ripe for adjudication now. Or must the case be deferred until 2015 because of the 1867 Anti-Injunction Act, which bars federal courts from ruling on the constitutionality of tax laws before payments are due?

After that come the arguments about what many consider the central issue: whether the mandate, which is unprecedented, should be voided because it represents an unconstitutional exercise of Congress’ powers to regulate commerce and to levy taxes.

Next is what becomes of the law’s hundreds of other provisions, covering 2,700 pages, if the mandate is unconstitutional? Are some or all of them “severable,” meaning that Congress would have wanted them to stand even if the mandate falls? For example, what about the provisions establishing tax credits to help small businesses and individuals buy health insurance and taxing large employers that do not provide full-time employees government-approved coverage?

Apart from those issues, does the law’s expansion of Medicaid violate the sovereignty of the states by effectively requiring them to spend more of their own money or forfeit all of the federal Medicaid money they now receive?

What’s the likely outcome? Nobody knows. It’s clear that the court’s four more liberal members, like almost all other liberal legal experts, will find the law constitutional in all respects. It’s also clear that conservative Justice Clarence Thomas will vote to strike down much or all of the law. It’s less clear what swing-voting Justice Anthony Kennedy and conservative Chief Justice John Roberts as well as Justices Antonin Scalia and Samuel Alito will do.

Kennedy, Roberts, Alito, and (especially) Scalia — whom the government’s brief quotes five times — have all joined past decisions construing federal regulatory power very broadly. Two respected conservative federal appeals court judges, Laurence Silberman and Geoffrey Sutton, who is one of Scalia’s favorite law clerks, have upheld the law.

What are the major arguments for and against the individual mandate? Defenders say that the broad constitutional power of Congress to regulate interstate commerce, and the even broader power to “lay and collect taxes,” both provide ample authority for requiring that people buy insurance as part of a comprehensive scheme to end “discriminatory insurance practices that have excluded millions of people from coverage based on medical history,” in the words of a brief by Solicitor General Donald Verrilli.

The same brief also asserts that uninsured people consume $43 billion a year worth of emergency-room and other health care for which they do not pay, costs that are shifted to insurers and that raise insured families’ average premiums by more than $1,000 a year. Critics of the law dispute these numbers.

The 26 states challenging the law (along with a business group and four individuals) say, in the words of a brief by Paul Clement, who was solicitor general under President George W. Bush: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist. … It is a revolution in the relationship between the central government and the governed.”

Clement also stresses thatÌýPresident Barack Obama and his allies in Congress insisted during the debate before the measure became law that the financial penalty for failing to comply with the individual mandate is not a tax. They should not be allowed, he argues, to “enact legislation that would not have passed had it been labeled a tax and then turn around and defend it as a valid exercise of the tax power.”

The Anti-Injunction Act? This reconstruction-era statute bars courts from considering the constitutionality of tax laws until payments are due. It will apply here if the court deems the individual mandate’s penalty provision a “tax.”

Because the mandate is not scheduled to take effect until 2014 and the first penalties would not be due until 2015,Ìýthe federal courts would not yet have jurisdiction to consider the constitutionality of the penalties or the mandate. In other words, consideration of the case would be postponed until 2015, and, therefore, such a decision would convert the biggest case in decades into the biggest anticlimax in Supreme Court history.

Both sides say that the Anti-Injunction Act does not apply. But the court appointed a lawyer as “friend of the court” to argue that it does, as one federal appeals court held. This appointment signaled the court’s care to observe arguable limits on its jurisdiction even when the parties agree that it has jurisdiction.

What are the major arguments on severability? The government says that if the court strikes down the mandate, it should defer until future cases any ruling on the severability of most other provisions. But, if it does rule on severability, the government maintains that only two other provisions should go down with the mandate. Those are the “guaranteed-issue” and “community-rating” provisions, which bar insurers from denying coverage or charging higher premiums because of medical history. Without the individual mandate, the government says, those provisions would send premiums soaring by creating incentives for healthy people to defer buying insurance until they need health care.

The 26 states argue that the mandate was deemed by Congress to be “necessary to make the other provisions work as intended,” and that the court should strike down the whole law.

The court appointed another friend-of-the-court lawyer to write a brief arguing that a decision striking down the mandate should leave the rest of the law — including guaranteed issue and community rating — intact.

What are the major arguments on Medicaid? The government asserts that “it is well settled that Congress’s spending power includes the power to fix the terms on which it will disburse funds to the states,” that Congress has repeatedly expanded the state-federal Medicaid program, and that this new expansion will not “impose significantly onerous burdens on the states.”

The 26 states counter that the Medicaid expansion unconstitutionally coerces them because it “threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence — literally billions of dollars each year — if they do not capitulate to Congress’ steep new demands.”

Stuart Taylor, Jr. is an author and contributor to the National Journal and other publications.

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Taylor

The case, which will probably be argued in March on a date still to be announced,Ìýis especially momentous because it not only will determine the fate of President Barack Obama’s biggest legislative achievement but also will cast important light on the Supreme Court’s future course under Chief Justice John Roberts on issues of federal government power.

The central issue — but not the only important one — is whether Congress exceeded its constitutional powers to regulate interstate commerce and to levy taxes when it adopted the so-called “individual mandate” at the heart of the health care law.

That provision would require millions of people starting in 2014 to buy commercial health insurance policies or pay financial penalties for failing to do so.

The court also agreed to decide a challenge to the Affordable Care Act’s provision essentially requiring states greatly to expand their Medicaid spending.

The court made clear that if it decides to strike down the individual mandate or Medicaid provision, it will also decide which of theÌý975-page law’s hundreds of other provisions should go down too, by divining whether Congress would have wanted some or all of them to be effective even without the voided provision or provisions.

Photo by Jessica Marcy/KHN

Finally, the courtÌýagreed to decide whether — as one federal appeals court ruled — the litigation surrounding the individual mandate must be deferred until 2015 because of the 1867 “Anti-Injunction Act,” which bars courts from striking down tax laws before they take effect.

The court allocated an extraordinary five and one-half hours — the most time in many decades for related challenges to a single new law — for argument on all these issues combined.

How The Case Got Here

The court’s announcement Monday centered on aÌýchallenge to the law by 26 state governments. The 11th Circuit Court of Appeals in Atlanta voted in August to strike down the individual mandate but to leave standing the rest of the health law, including the Medicaid expansion. All three of the petitions granted today involve that case.

In other action, though, the D.C. Circuit and the 6th Circuit, centered in Cincinnati, have upheld the individual mandate, with opinions supporting the Obama position by two of the nation’s leading conservative judges, the D.C. Circuit’s Laurence Silberman and the 6th Circuit’s Jeffrey Sutton.

Another appeals court, the 4th Circuit, said courts have no power to decide the individual mandateÌýissue until 2015, when the first monetary penalties will be due for failing to comply with the individual mandate to buy health insurance. This decision held that the penalty provision is a “tax” within the meaning of the Anti-Injunction Act, as described above.

If the justices agree that the Anti-Injunction Act applies, this year’s case will be perhaps the greatest anticlimax in Supreme Court history. And, the justices’ assignment of a full hour of oral argument to this question suggests that some take this issue very seriously.

Meanwhile, the purpose of the individual mandate is to force millions of Americans to obtain health insurance — whether they want to or not — in order to offset the costs that health insurers would bear under the health care law’s requirement that they sell insurance to everyone without charging those with especially costly health problems more than healthy people.

The lower court judges who have struck down the mandate have cited as their reasoning the lack of any precedent for Congress to require people to buy a commercial product they don’t want and the government’s failure to show how — if the individual mandate is upheld — a limit enforceable by the courts could be applied to this exercise of congressional power.

As background, the two Supreme Court decisions since 1937 that have struck down acts of Congress as exceeding the commerce power, one in 1995 and one in 2000, stressed that Congress’ commerce power must be restrained by some principle that could be enforced by the judicial branch of government.

Defenders of the individual mandate stress other Supreme Court precedents suggesting that even economic decisions that have a tiny direct effect on interstate commerce — such as a person’s decision not to buy health insurance — cumulatively have major effects on interstate commerce and thus can be regulated by Congress.

With the court’s announcement today, none of the justices recused themselves from hearing the case. Some conservative opponents of the health care law have suggested that Justice Elena Kagan should recuse herself because of her prior work as President Obama’s Solicitor General. And some liberals have suggested that Justice Clarence Thomas should recuse himself because of his wife Virginia Thomas’s political activities opposing the health care law. But the decision on recusal is left to each individual justice and it would have been announced with today’s order.

Meanwhile, as is customary, the Court announced the grants of review with no comment or indication of the vote. Any four justices can agree to review a case. And, given the importance of the issues, with federal appeals courts divided, today’s announcement was widely expected.

Most but not all Supreme Court experts predict — some very confidently, some cautiously — that the Court will uphold the law. The Supreme Court’s four liberals are certain to uphold the law. They would need only one more vote to prevail. While Justice Clarence Thomas seems a sure vote to strike the law down, Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito are harder to call.

A decision in June — or before — would help make the future of health care law a central issue in the 2012 presidential campaign.

Taylor, an author and journalist, is a nonresident fellow at the Brookings Institution.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might some justices effectively impose a constitutional truth-in-labeling requirement?

In order to explore these questions, it’s important to first review the current tally of wins and losses.ÌýSo far, one federal appeals court in June upheld the mandate by 2-1. A second struck it down in August by 2-1. And a third on Sept. 8 threw out two other challenges on jurisdictional grounds. Federal district courts have also issued conflicting rulings.

With more cases in the pipeline, it’s certain that the Supreme Court will step in to decide the mandate’s fate. The final decision will probably come down next June, if the Obama administration files its petition for review promptly this autumn, but certainly by 2013.

Most legal experts have long predicted that the Supreme Court will uphold it. Although the confidence level has dipped as lower-court judges have gone both ways, Walter Dellinger, former acting solicitor general under President Clinton, predicts a 7-2 vote to uphold. Tom Goldstein, another leading Supreme Court advocate, who represents AARP as a friend of the court supporting the law, predicts 7-2 or 6-3, adding that “the opponents of the law have done a tremendous job at articulating their theory, and they’ve gotten more traction than I imagined they would,” but he doesn’t “see a realistic chance of them winning.”

But David Rivkin, one of the lead lawyers challenging the health care law, confidently predicts a 5-4 vote to strike down the individual mandate.

Based on the current lay of the land, I’d put the chances at about 25 percent to 33 percent that the mandate is overturned. The court seems even less likely to sweep away the rest of the 975-page law, according to legal experts following the case closely.

For starters, the court’s four Democratic appointees seem almost certain to vote to uphold the law. And Justice Clarence Thomas seems almost certain to vote to strike it down. Still, it’s harder to call the other four Republican appointees, Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito. Each side in the health care litigation has cited one or more opinions written or signed by each of these four justices. But even on the questionable assumption that each is a good bet to vote with Thomas, the odds seem against all four doing so. (For example: 2/3 x 2/3 x 2/3 x 2/3 = 16/81.)

Examining The Arguments Against The Mandate This is not to deny that the health law’s challengers have very respectable arguments against the mandate, which would in 2014 require millions of healthy people either to buy health insurance policies or to pay financial penalties.

First, the mandate is without precedent. Congress has never before passed a law requiring Americans to buy a commercial product that they don’t want in the name of regulating interstate commerce. And the novelty of a far-reaching new requirement may (or may not) count against its constitutionality, the court has said in prior cases.

“Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service,” the Congressional Research Service reported in 2009, while the health care bill was pending.

Second, although the justices have construed very broadly Congress’s power to regulate commercial activity, they have never held that Congress may regulate even inactivity, by requiring people who want to be left alone to engage in commerce. As such, the mandate encroaches on individual liberty and autonomy in a way that is sure to trouble those justices — especially Kennedy, who is often the pivotal vote — who see judicially imposed limitations on the commerce power as vital protections of liberty.

Third, although only two Supreme Court decisions (in 1995 and 2000) since 1937 have struck down acts of Congress as exceeding the commerce power, they stand for the proposition that that power must be restrained by some meaningful, judicially enforceable limiting principle. Opponents of the individual mandate have made a strong case that a decision upholding it would effectively give Congress unlimited power to require people to buy vegetables, cars and anything else that Congress might choose to promote.

“If Congress may compel individuals to purchase health insurance from a private company,” Chief Judge Joel Dubina, of the 11th Circuit Court of Appeals, wrote in an August 12 decision striking down the individual mandate but upholding the rest of the law, “it may similarly compel the purchase of other products from private industry, regardless of the ‘unique conditions’ the government cites as warrant for Congress’s regulation here.”

Fourth, there is that truth-in-labeling concern. While never expounded as a formal doctrine, this point stems from the distinction between Congress’ broad power to regulate interstate commerce and its even broader power to “lay and collect taxes” – a theme running through the current litigation.

The court has long ruled that the taxing power is virtually unlimited, on the assumption that the political process is an adequate safeguard against excessive or abusive taxes — at least, if the taxes are undisguised. And this is an important point to remember as the legal action continues to unfold.

Tax Or Penalty? One of the ways the president and his allies wanted to offset the costs health insurers would bear under the health law’s guaranteed-issue requirement is to require millions of Americans to spend billions of dollars on health insurance, even though many of them might otherwise choose not to buy it.

The most constitutionally unassailable way to do this would have been to raise the taxes of these Americans while offering tax credits to those who bought expensive, government-approved health insurance.

But as U.S. District Judge Roger Vinson, of Pensacola, Fla., asserted in one of the early rulings against the law, “Not only are taxes always unpopular, but to do so at that time would have arguably violated pledges by politicians … to not raise taxes, which could have made it that much more difficult to secure the necessary votes for passage.”

So Congress devised the individual mandate to extract the money from taxpayers while strenuously asserting that the penalty for noncompliance was not a tax. Since the health law’s passage, though, the Obama administration has argued that this penalty is a tax, and thus should be upheld as an exercise of the taxing power, as well as of the power to regulate commerce.

But even most of the judges who have upheld the mandate as a regulation of interstate commerce — as well as those who have struck the mandate down — have rejected the administration’s position that it is also a valid exercise of the taxing power.

Different Supreme Court precedents appear to point in different directions on whether the commerce power is broad enough to justify the individual mandate. Here’s why I am laying odds that they will uphold it:

–The court’s most recent precedents suggest (ambiguously, to be sure) that the only judicially enforceable limit on the commerce power is that Congress cannot use it to regulate non-economic, personal, local activities.

–The health care and health insurance markets massively affect interstate commerce. In the words of an opinion upholding the mandate by Bush-appointed Judge Jeffrey Sutton, “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”

And for all the objections to regulating “inactivity,” the individual mandate is no more intrusive on personal liberty and autonomy than, say, the Social Security and Medicare taxes, which serve similar purposes.

This analogy to the Social Security and Medicare laws, which included clearly labeled taxes, only highlights the truth-in-labeling objection to the individual mandate, which is arguably a tax in disguise. But truth does not come easy to politicians. And in this case, the justices may turn to an important principle: When the constitutional arguments for and against striking down a major act of Congress seem almost equally strong, say advocates of judicial restraint, the court should defer to the people’s elected representatives — no matter how unpopular they are with the people.

“Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” as Judge Sutton concluded, “allowing the people’s political representatives, rather than their judges, to have the primary say over its utility.”

Taylor is a contributing editor forÌýNational Journal.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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The HCLSC – health care litigation spin cycle – is in overdrive now that a Reagan-appointed federal judge has strongly signaled in court that he is very likely to follow a George W. Bush appointee who struck down the individual mandate at the heart of the new health care law.

Republican critics of the law were saying that “several”Ìý(that is, two) judges had found unconstitutional the requirement that Americans obtain insurance or pay penalties. Meanwhile, President Obama was : “We’ve got 12 federal courts who have dismissed similar lawsuits. So the majority of courts who looked at this issue so far are absolutely convinced that the health care bill is [constitutional].” Twelve! Sounds convincing. But Obama neglected to note that 10 of those lawsuits were mostly beside the point because they were not aimed at the individual mandate or were dismissed on grounds that did not uphold its constitutionality.

If counting judicial noses at this early stage were a reliable guide to the likely fate of the health care law on appeal, the score would stand at two Clinton-appointed judges, George Steeh and Norman Moon, upholding the individual mandate; Bush-appointed Henry Hudson , and Reagan-appointed Roger Vinson sounding during an oral argument on Dec. 16 like he would . The four sit in Detroit; Lynchburg and Richmond, Va., and Tallahassee, Fla., respectively.

But district judges’ rulings tell us little or nothing about what the federal appeals courts and the Supreme Court will ultimately do with these cases. Below is an overview of the litigation, what it’s about, and how it’s likely to unfold.How many health care lawsuits are there? More than 20 have been filed around the country, some going to the heart of the law and some peripheral.

Why is one provision of the massive law getting so much attention? First, it’s widely seen as a lynchpin of the Democrats’ goal — that just about every American have affordable insurance regardless of their health. Without the mandate, many people might go without insurance – thus driving up premiums for everyone else – because they would know that whenever they need coverage they could easily get it. Second, as a constitutional matter, the mandate is the law’s most vulnerable major provision because it is the first ever to require millions of Americans, in the name of regulating interstate commerce, to buy a commercial product that theyÌý may not want to pay for. Since the New Deal, the Supreme Court has allowed Congress extremely broad powers to regulate commerce. But the Court has never said that that power is unlimited and has left room for questions such as one that Vinson asked: Could Congress “mandate that everybody has to buy a certain amount of broccoli?”

But if it’s necessary to pay for near universal coverage, it must be constitutional, right? The Obama administration and many others essentially say that. Critics say that market-based incentives would work better. One irony is that Congress could without fear of constitutional invalidation have created the kind of single-payer system that conservatives call socialism. Hudson stressed that as a matter of law, good policy is not necessarily constitutional, nor bad policy unconstitutional. But it’s pretty clear that he and Vinson think this law is bad both ways. And that Steeh and Moon think it’s good both ways.

Why do people keep saying the Supreme Court will decide the fate of the law in June 2012 or June 2013?Ìý June is when the Court issues most of its big decisions, with some notable exceptions, whether they are argued in April or the previous October. That’s because big decisions tend to generate long opinions, dissents, and concurrences, which circulate back and forth as the justices trade debating points in footnotes. Decisions are almost never issued in July, August or September because the justices cherish their three-month summer vacations.

What has to happen before the Supreme Court gets the case? While lots of cases are pending around the country, the four mentioned above seem to be on the fastest tracks. The Detroit and Lynchburg cases are already before or headed for the U.S. Courts of Appeals for the 6th and 4th Circuits, respectively. Hudson’s decision will also go to the 4th Circuit. Vinson’s will go to the 11th Circuit no matter how he rules. And it often takes 14 months to two years for a case to move from the final ruling of a district judge such as Hudson to any decision by the Supreme Court.

Why does it take so long? Judges and lawyers move very slowly. Allow four to five months for filing of initial briefs and responses in the appeals court. Three to eight more months for the three-judge panel to rule. Another four to six months for the losing side to seek and obtain (in a small percentage of cases) a Supreme Court decision to review the case. More than three additional months of briefing before the justices hear arguments. But this timetable could slip by a year if the losing party in a regional appeals court panel obtains a rehearing before the full appellate court, or if the justices choose to await conflicting appeals court rulings rather than taking up the first case that comes along.

What’s likely to happen? Lawyers in the Tallahassee case appear to have chosen Florida for a reason: The appeal of Vinson’s decision will go to the 11-judge U.S. Court of Appeals for the Eleventh Circuit, one of the most conservative in the country. Chances are good that a typical 11th Circuit panel will move fast, by judicial standards, to strike down the individual mandate. Other cases may move fast, too. That would tee the issue up for a Supreme Court argument by the spring of 2012 and a ruling likely to fall between June 25 and 28 of that year.

Who will win? TheÌýfour more liberal justices will vote to uphold the law. Can they get to five? All eyes will be on their best bets: swing-voting Anthony Kennedy and Chief Justice John Roberts.

Taylor is a contributing editor for Newsweek and National Journal.

ºÚÁϳԹÏÍø News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about .

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