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The Supreme Court yesterday morning agreed to hear a challenge to the 2010 Affordable Care Act (ACA), aka "ObamaCare”.

The Court has scheduled 5-1/2 hours of oral argument.  It is very rare for the Court to grant this much time for oral argument.  The Court will consider several issues related to this unprecedented legislation.

Following is my short summary of the Court’s order granting review.

1. The granted petitions all relate to the 11th Circuit Court of Appeals decision, which struck down the individual mandate.  This is the case brought by 26 states, a business association and a few individuals.  In that case, the 11th Circuit Court of Appeals, sitting in Atlanta, Georgia, determined that the individual mandate provision in Obama Care is unconstitutional.  This is also the case that Montana’s present Attorney General and current Democratic Candidate for Governor, Steve Bullock declined to join and claimed was "without legal merit.”


2. The court will hear arguments on the constitutionality of the requirement that nearly all citizens have health insurance or pay a penalty (the "individual mandate”).


3. Another issue to be considered is whether some or all of the rest of ObamaCare must fall if the individual mandate is unconstitutional.

4. A third issue is the constitutionality of ObamaCare’s huge expansion of the Medicaid program to cover all citizens under 133% of the federal poverty line.  If upheld, this provision could end up forcing the State of Montana to spend millions more dollars on Medicaid programs.

5. Finally, the Court will also consider whether the Anti-Injunction Act renders premature the individual mandate challenge.  In other words, the Court will decide whether the Court has the power to review the constitutionality of ObamaCare before the law goes fully into effect.

6. An oral argument hearing date on the Constitutionality of ObamaCare has not been set, but it is likely to be in late March.

7. A decision could be handed down in September 2012.  In any event, the decision on the constitutionality of ObamaCare will be rendered prior to the presidential election date in November 2012, thereby ensuring that this legal case will be a major focus of discussion immediately before voters go to the polls.

8. In reality, given the makeup of the present Supreme Court, the decision is likely to be a 5-4 decision.  The deciding vote will likely be cast by Justice Anthony Kennedy, who was appointed by President Reagan.  Justice Kennedy is generally known as the swing vote on the Supreme Court.

9. ObamaCare is a perfect example of why elections matter at every level.  Montana Senators Jon Tester and Max Baucus voted to bypass the traditional legislative process and to ram through ObamaCare on Christmas Eve 2009.  It is well known that Senator Tester was the deciding vote on getting this unprecedented and job destroying legislation through the Senate.

10. Senators Tester and Baucus voted to confirm Elana Kagan as the most recent member of the United States Supreme Court.  Recall, Elana Kagan was President Obama’s Solicitor General, and recent documents have shown she actively supported the passage of ObamaCare prior to her appointment to the Supreme Court.

11. As a result of his election in 2008 as Montana’s Attorney General, Democrat Steve Bullock had the authority to decline to have Montana participate in a lawsuit brought by the majority of other States to knock down this unprecedented expansion of federal power over states and over Montana citizens.

12. As a result of her election as State Auditor in 2008, Monica Lindeen is in a position to implement regulatory the ObamaCare Act in Montana, despite the Republican-lead Montana Legislator’s efforts to stop ObamaCare from being implemented in Montana.

What do these facts show?  They show that elections matter.

James E. Brown, LL.M.

Attorney