How big is the constitutional challenge to the Obama health care law, which the Supreme Court will hear on March 26-28?

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.

Beneath the thousands of pages of legal arguments in the health care lawsuits to be decided sooner-or-later by the Supreme Court lies an easier-to-grasp, if largely unarticulated, background question.

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. So 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.

Jackie Judd talks with legal analyst Stuart Taylor about the legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void.

Listen to audio of the interview. 

JACKIE JUDD: Good day, this is Jackie Judd for Kaiser Health News. A legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void because its core – the mandate that almost all Americans obtain health insurance – violates the Commerce Clause [of the U.S. Constitution]. The suit was brought by some 26 states. Legal analyst Stuart Taylor, a contributing editor for Newsweek and the National Journal, is with us. Thank you, Stuart, for joining us. Walk us through the judge’s reasoning.

STUART TAYLOR: Nice to be with you. The gist of it was that Congress has no power to require individuals to purchase health insurance. Because the only basis for the power that the federal government has claimed is the power of Congress to regulate interstate commerce. And the judge held that that power – although it’s very broad, and the Supreme Court may decide it’s broad enough to justify this law – Judge Roger Vinson said it’s not broad enough to require someone to purchase a commercial product. That’s the gist of it.

JACKIE JUDD: And then he went a step beyond that, saying that the individual mandate is so inextricably linked to the rest of the bill that one couldn’t be separated from the other and therefore the entire bill would be void?

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” (that is, two) judges had found unconstitutional the requirement that Americans obtain insurance or pay penalties. Meanwhile, President Obama was saying: “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 striking it down Dec. 13, and Reagan-appointed Roger Vinson sounding during an oral argument on Dec. 16 like he would do the same. 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.

 Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.

Watch the video  or listen to the audio.

Transcript:

JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?

STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.

Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.

JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?