Game on for health law duelists at Supreme Court

  • Article by: ADAM LIPTAK , New York Times
  • Updated: March 26, 2012 - 8:49 AM

As the Supreme Court prepares to consider the case, starting today, each side's champion has been in training.

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Linda Door of Laguna Beach, Calif. protests against the health care reform law as supporters, holding signs saying "Protect the Law," file past the Supreme Court in Washington, Monday, March 26, 2012. The high court begins three days of arguments on health care starting Monday.

Photo: Charles Dharapak, Associated Press - Ap

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WASHINGTON - The three days of Supreme Court arguments that start Monday on the constitutionality of President Obama's health care law will be a legal marathon, and the lawyers involved have been training.

Last week, there were so many of the mock arguments that lawyers call moot courts that they threatened to exhaust something that had never been thought in short supply: Washington lawyers willing to pretend to be Supreme Court justices.

The problem, said Paul Clement, representing the 26 states challenging the law, is not just the length of the arguments the court will hear, but the variety of topics to be addressed.

The decision in the case will have enormous practical consequences for how health care is delivered in the United States as well as political consequences for Obama and his GOP challenger.

The justices have broken the case into four discrete issues, scheduling a separate session for each, for a total of six hours, the most in more than 40 years. Clement, like his principal adversary, Solicitor General Donald Verrilli Jr., will be arguing three times.

Walter Dellinger, who was acting solicitor general in the Clinton administration, said he was worried about "the enormous endurance challenge this will be for Verrilli and Clement." Dellinger said making even a single 30-minute presentation is draining.

"The day or two after a Supreme Court argument, I just basically collapse," he said.

The central issue in the case, to be argued for two hours Tuesday, is whether the individual mandate is constitutional.

But first, on Monday, the justices will hear 90 minutes of arguments from three lawyers about whether they should be hearing the case at all.

An 1867 federal law, the Anti-Injunction Act, bars suits "for the purpose of restraining the assessment or collection of any tax." The federal appeals court in Richmond, Va., and a prominent federal appeals court judge in Washington have issued opinions saying the 1867 law means a decision in the health care case must be deferred until 2015, when Americans will first be penalized if they do not have health insurance.

But neither the Obama administration nor the parties challenging the law agree with that ruling. So the court appointed a Washington lawyer, Robert Long, to speak on behalf of that argument.

Long was one of three lawyers who presented mock arguments in the grand ceremonial courtroom at the Supreme Court Institute at the Georgetown University Law Center. The moot court program there also helped prepare Clement, twice, as well as Michael Carvin, who represents private challengers to the law.

Clement and Carvin will face Verrilli on Tuesday for the main event, the argument over whether the requirement to obtain insurance was authorized by the Constitution as a regulation of interstate commerce or by the power to levy taxes.

For Wednesday, the justices will hear 90 minutes of arguments in the morning about what should happen if they strike down the mandate.

The federal appeals court in Atlanta, whose decision is under review, ruled it was possible to remove just the mandate and leave the balance of the law intact. Clement will contend that the entire law must fall.

On Wednesday afternoon, the two main lawyers, Verrilli and Clement, will return for an encore, this time to argue over whether Congress exceeded its constitutional authority in expanding the eligibility and coverage thresholds states must adopt to remain eligible to participate in Medicaid.

Clement, who has argued more than 50 times in the Supreme Court, said he usually schedules two moot courts per argument. Here, he said, he settled for five sessions for three arguments, one on every weekday last week.

Lawyers in the solicitor general's office also hold moot courts, though in a less grand setting. "It's just the lunchroom, basically," said Neal Katyal, who was acting solicitor general until last summer.

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